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June 21, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 192 (up from 185) Currently positive-testing staff: 289 (unchanged) Recovered inmates currently in the BOP: 50,549 (down from 50,626) Recovered staff: 12,941 (unchanged)


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

Marianna FCI: 32 (down from 34)

Petersburg Low FCI: 22

Honolulu FCI: 11 (down from 15)

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

Central Headquarters: 34 (up from 32)

Rochester FMC: 16 (unchanged)

Mendota FCI: 10 (unchanged)

System-wide testing results: Presently, BOP has 139,969 federal inmates in BOP-managed institutions and 13,668 in community-based facilities. Today's stats: Completed tests: 128,714 (down from 128,724) Positive tests: 55,362 (down from 55,372)


Total vaccine doses administered: 321,834 (up from 321,529)


Case Note: Disparity with other defendants convicted in connection with PedoBook is, among others, extraordinary and compelling...


In U.S. v. DeFoggi, 2022 WL 1785435c(D. Neb. June 1, 2022) (Bataillon, J.), the court found that disparity with other defendants convicted in connection with PedoBook, along with COVID and defendant's rehabilitation are extraordinary and compelling circumstances warranting sentencing reduction, explaining: "Following a jury trial, defendant Timothy DeFoggi was found guilty of the following Counts of the Indictment: Count I (Knowingly engaging in a child exploitation enterprise), Count II (Conspiracy to advertise child pornography), Count III (Conspiracy to distribute child pornography), Count IV (Access with intent to view child pornography), Count V (Access with intent to view child pornography), Count VI (Access with intent to view child pornography), and Count VII (Access with intent to view child pornography). The Court vacated the convictions on Counts II and III as lesser-included offenses of Count I. Filing No. 277. On January 6, 2015, the Court sentenced the Defendant to 300 months’ incarceration on Count I, and 120 months’ incarceration on each of the remaining Counts, all to be served concurrently, followed by supervised release for his lifetime on each count, also to be served concurrently. … DeFoggi argues the Court's sentence of 300 months was both unduly harsh and grossly disproportionate to other defendants involved in the same child-pornography website. The Court agrees that under the circumstances of this case, and in combination with DeFoggi's risk for COVID-19 and rehabilitation, such a large sentencing disparity constitutes an extraordinary and compelling circumstance and warrants relief under § 3582(c)(1)(A). As set forth in greater detail in the Eighth Circuit Court of Appeals’ opinion, Filing No. 309, and DeFoggi's presentence investigation report, Filing No. 323, DeFoggi was arrested as a result of an FBI investigation into a child-pornography website, PedoBook. … Aaron McGrath was the administrator of PedoBook, meaning he operated and hosted the website that facilitated users like DeFoggi in accessing child pornography. Filing No. 323. McGrath received a sentence of 240 months’ incarceration and 10 years of supervised release for engaging in a child exploitation enterprise in Case No. 8:12-cr-422. Numerous other users of PedoBook were arrested and convicted of child-pornography related offenses as well, such as DeFoggi's codefendant, Zachary Austin, who was sentenced to 192 months’ incarceration and 10 years of supervised release for conspiracy to distribute child pornography. Filing No. 250. At the time Austin committed the offenses relating to PedoBook, he had already been charged with child-pornography crimes in the District of Nevada. … Another user of PedoBook was Charles MacMillan. See Filing No. 323 at 10 (DeFoggi's PSR listing MacMillan's as a “related case”). MacMillan was sentenced to 144 months’ incarceration and 20 years supervised release pursuant to a Government approved mandatory plea agreement under Fed. R. Crim. P. 11(c)(1)(C) in which MacMillan pled guilty to conspiracy to advertise child pornography. See Case No. 8:13-cr-319 at Filing No. 99. MacMillan and DeFoggi exchanged messages on PedoBook. … Other defendants involved in the PedoBook website include David William Peer (sentenced to 120 months’ incarceration and 15 years of supervised release for access with intent to view child pornography in case No. 8:13-cr-106); Michael Hyuck (sentenced to a total of 72 months’ incarceration and 5 years of supervised release for receipt of child pornography and access with intent to view in Case No. 8:13-cr-107-6); Jason Flanary (sentenced to 240 months’ incarceration for child exploitation enterprise in Case No. 8:13-cr-104); and Vincent Diberardino (sentenced to 48 months’ incarceration and 5 years of supervised release for access with intent to view in Case No. 8:13-cr-107-4). … As set forth above, after the Eighth Circuit vacated DeFoggi's conviction for knowingly engaging in a child-exploitation enterprise, DeFoggi was re-sentenced to a total term of 300 months’ incarceration followed by lifetime of supervised release for four counts of accessing with intent to view child pornography. This sentence is out of step with the sentences the other PedoBook defendants received. … Reasoning that DeFoggi should receive the highest sentence by far of all these defendants is problematic. Congress intended that child-pornography crimes be treated along a spectrum of culpability ranging from possessing/accessing child pornography with no mandatory minimum sentence to the most severe offense of production of child pornography. Compare 18 U.S.C. § 2252A(b)(2), with 18 U.S.C. § 2251(e). Additionally, the United States Sentencing Commission has repeatedly examined the sentences imposed for child-pornography offenses and concluded “[a]s courts and the government contend with the outdated statutory and guideline structure, sentencing disparities among similarly situated non-production child pornography offenders have become increasingly pervasive.” … The Commission recommended that Congress reform the child-pornography sentencing scheme to more accurately reflect the lesser culpability of non-production offenses, but to date no such legislation has passed. “Courts [can] consider overly harsh sentences and sentencing disparities as factors contributing to ‘extraordinary and compelling reasons’ ” for purposes of compassionate release. … Despite DeFoggi's conviction for the lowest level child pornography offenses and the U.S.S.C.’s recognition that the sentencing scheme for child pornography is out of touch with the reality of non-production offenses, he received the highest sentence of all the PedoBook defendants.Importantly, MacMillan engaged in comparable conduct as DeFoggi and authored the messages between the two-referencing acting out fantasies in real life, yet DeFoggi received a sentence more than double MacMillan's. Furthermore, the Government agreed to a sentence under Fed. R. Crim. P. 11(c)(1)(C) for MacMillan to 144 months, indicating its approval that a sentence of such length was appropriately severe for the non-production conduct at hand in MacMillan's case. Although MacMillan accepted responsibility by pleading guilty whereas DeFoggi continues to deny his guilt, MacMillan's age, record, and admitted desire to actively engage in child exploitation negate any sentencing difference between the two related defendants. Accordingly, the Court concludes that the grossly disproportionate and harsh sentence imposed upon DeFoggi in comparison to the other PedoBook defendants, constitutes an extraordinary and compelling reason to grant him compassionate release, together with the factors noted below, supports that he should receive a total sentence of 144 months’ incarceration to be more aligned with the other defendants in the PedoBook scheme.”)


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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