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June 8, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 165 (up from 157) Currently positive-testing staff: 300 (down from 301) Recovered inmates currently in the BOP: 50,906 (down from 50,958) Recovered staff: 12,810 (up from 12,794)


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

Honolulu FDC: 33 (uncharged)

Bastrop FCI: 31 (unchanged)

Marianna FCI: 9

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

Central Headquarters: 29 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

Victorville USP: 13 (unchanged)

System-wide testing results: Presently, BOP has 139,779 federal inmates in BOP-managed institutions and 13,574 in community-based facilities. Today's stats: Completed tests: 128,717 (up from 128,715) Positive tests: 55,365 (up from 55,363)


Total vaccine doses administered: 320,257 (up from 320,077)


Case Note: Defendant would no longer be designated a career criminal, and receive 30-year sentence so is granted compassionate release and resentenced to time served...


In U.S. v. ROY BLANKENSHIP, No. CR 2:02-00097, 2022 WL 2036280 (S.D.W. Va. June 6, 2022) (John T. Copenhaver, Jr.), the court, drawing on the Fourth Circuit's teaching in U.S. v. McCoy, granted compassionate release to defendant who would no longer be considered a career criminal, explaining: "In United States v. McCoy, the Fourth Circuit addressed whether changes in sentencing law could support compassionate release under § 3582(c)(1)(A)(i). McCoy was a consolidated action considering motions for compassionate release brought by defendants who had been convicted of multiple offenses under 18 U.S.C. § 924(c). McCoy, 981 F.3d 271, 275 (4th Cir. 2020). Section 924, in relevant part, “imposes mandatory minimum sentences for using or carrying a firearm in connection with a crime of violence: for a first offense, a five-to ten-year mandatory minimum, depending on the circumstances; and for a subsequent conviction, a consecutive 25-year mandatory minimum. Prior to the First Step Act, a conviction was treated as ‘second or subsequent,’ triggering the 25-year minimum sentence, even if the first § 924(c) conviction was obtained in the same case.” Id. The First Step Act ended this practice of “stacking,” and clarified that the 25-year mandatory minimum only applies to defendants who have previously been convicted under § 924(c) in a separate case. Id.; § 403(a), 132 Stat. at 5222.


The McCoy defendants sought, and were granted, compassionate release at the district court level, and the United States appealed, arguing that disproportionately long sentences could not serve as “extraordinary and compelling” reasons warranting compassionate release.


The McCoy Court found that “the severity of the defendant's 924(c) sentences and the extent of the disparity between the defendants' sentences and those provided for under the First Step Act” were factors that could be considered as part of the “extraordinary and compelling reasons” underlying compassionate release. Id. at 285. The court affirmed the grants of compassionate release, noting that the district courts had conducted “individualized inquiries,” and had based relief not just on sentencing disparities but also on factors such as defendants' “relative youth at the time of their offenses, their post-sentencing conduct and rehabilitation, and the very substantial terms of imprisonment they already served.” Id.

Relying on McCoy as persuasive authority, Blankenship 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.

Pursuant to the United States Sentencing Guidelines, a defendant is classified as a career offender if,

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.


U.S.S.G. § 4B1.1(a). If the career offender designation applies, the Guidelines provide that the defendant's Criminal History Category shall be Category VI. U.S.S.G. § 4B1.1(a). Additionally, Section 4B1.1(b) provides for an enhancement in the defendant's Total Offense Level based upon the statutory maximum for the offense of conviction.


As previously noted, at the time of his sentencing, Blankenship met all the criteria for career offender designation.5 Since Blankenship'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).6 Accordingly, if sentenced today, Blankenship would not meet the second criterion for designation as a career offender.


Blankenship and the government agree that under today's Guidelines, Blankenship's Base Offense Level would be 32. U.S.S.G. § 2D1.1(c)(4).7 With a two-level enhancement for playing a leadership role, Blankenship's Total Offense Level would be 34. Without the career offender designation, Blankenship's Criminal History Category drops from VI to IV.


A Total Offense Level of 34 and Criminal History Category IV produce an advisory guideline range of 210 to 262 months. The lower end of that range is 150-months shorter than the sentence imposed pursuant to the 360 to life guideline range Blankenship faced at his sentencing hearing in 2002, which at that time, prior to Booker, was deemed mandatory. See United States v. Booker, 543 U.S. 220 (2005).


Second, in addition to the disparity between the sentence he received and the one he believes he would receive if sentenced today, Blankenship submits that his record while incarcerated also supports a reduction in his sentence.

Since his term of incarceration began, Blankenship has taken numerous educational courses and has maintained consistent employment. See ECF No. 129-1; ECF No. 129-2. Blankenship's most recent Individualized Needs Plan Program Review states that he “has maintained employment with satisfactory work reports since his last review,” has completed multiple classes, and has started to save money for release. ECF No. 129-1.


Moreover, he has incurred only three minor disciplinary infractions during his time in prison, for which he received only administrative sanctions. ECF No. 129-3. Blankenship's last infraction occurred in 2017 and resulted only in lost communication and phone privileges. Id. Given the length of time Blankenship has spent in federal custody, this lack of disciplinary infractions is significant. See United States v. Spotts, Nos. 3:00-cr-0647; 3:98-00047-01, 2019 WL 6521981, at *2 (S.D.W. Va. Dec. 3, 2019) (finding it “[s]omewhat remarkabl[e]” that the defendant “accumulated no more than twelve sanctions over the course of his nearly twenty-two year term of incarceration”).


The government “concedes that Defendant would no longer be a career offender if sentenced under today's law.” ECF No. 1332, at 6. Still, it argues that Blankenship is not entitled to release as a matter of right and that his “individual circumstances militate against a finding of extraordinary and compelling reasons.” Id. at 6−12.


Specifically, the government states that although Blankenship “has a positive institutional record,” he is unlike the defendants in McCoy who were young men with minimal criminal histories. Id. at 9. Instead, it submits that Blankenship's “criminal behavior spans multiple decades, and primarily consists of drug related convictions.” Id. The government compares Blankenship to the defendant in United States v. Spencer, who was denied compassionate release despite no longer being a career offender based on the seriousness of his drug offense and his “lengthy adult criminal history.” Id. at 9−10 (quoting United States v. Spencer, 521 F. Supp. 3d 606, 610−611 (E.D. Va. 2021), aff'd, 853 F. App'x 833 (4th Cir. 2021).


The government's comparison of Blankenship to the defendant in Spencer overlooks the finer details of both cases. The defendant in Spencer had served nearly ten years of his 235-month sentence, whereas Blankenship has been incarcerated for more than twenty years. Second, the “lengthy adult criminal history” of that defendant included twenty-one adult criminal convictions, whereas Blankenship's PSR details six convictions, one of which was for misdemeanor drug possession and resulted in only six months of probation and two of which were misdemeanor offenses of public intoxication and driving with an expired motor vehicle inspection sticker, which resulted in small fines of $25 and $20 respectively. PSR ¶¶ 47−52.


The court finds that the disparity between the sentence Blankenship received and the one he would have received had he not been designated as a career offender, combined with his disciplinary and rehabilitative record while incarcerated, supports a finding of extraordinary and compelling circumstances that warrant release under § 3582. See United States v. Johnson, No. CR 3:11-00054, 2022 WL 1510544 (S.D.W. Va. May 12, 2022) (Chambers, J.); United States v. Minter, No. 2:12-CR-00191, 2021 WL 1894454 (S.D.W. Va. May 11, 2021) (Goodwin, J.); United States v. Vaughn, No. 5:08-CR-00266, 2021 WL 136172 (S.D.W. Va. Jan. 13, 2021) (Volk, J.).


Additionally, the court finds that a grant of compassionate release in this case is consistent with the factors enumerated in 18 U.S.C. § 3553(a), as required by 18 U.S.C. § 3582(c)(1)(A)....


A sentence of time served, after more than 242 months, falling within the upper middle of the 210 to 262 months guideline range, reflects the seriousness of Blankenship's crime, promotes respect for the law, and is a sufficiently just punishment that adequately serves the purposes of specific and general deterrence....


Finally, Blankenship's conduct while incarcerated suggests that he has taken advantage of educational and vocational opportunities while in prison and further incarceration is not needed to provide him education or vocation training.


Inasmuch as the court is satisfied that compassionate release is consistent with the factors set forth in § 3553, it finds that Blankenship is entitled to relief under § 3582(c). Accordingly, his motion for compassionate release, as supported by the memorandum filed on December 13, 2021 (ECF No. 129), is granted."



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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