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March 14, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 82 BOP facilities and 10 RRCs

Currently positive-testing inmates: 288 (up from 235) Currently positive-testing staff: 64 (unchanged) Recovered inmates currently in BOP: 45,153 (down from 45,207) Recovered staff: 15,193 (up from 15,192)


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

Leavenworth USP: 60 (up from 40)

Allenwood FCI: 24

Carswell FMC: 22 (down from 23)


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

Devens FMC: 7 (unchanged)

Terminal Island FCI: 6 (unchanged)

Carswell FMC: 6 (up from 5)


System-wide testing results: Presently, BOP has 144,976 federal inmates in BOP-managed institutions and 12,926 in community-based facilities. Today's stats: Completed tests: 128,657 (unchanged) Positive tests: 55,305 (unchanged)


Total vaccine doses administered: 348,939 (up from 348,913)


Case Note:

In U.S. v. Ortiz, No. 17CR2283-MMA-1, 2023 WL 2229262 (S.D. Cal. Feb. 24, 2023) (Anello, J.), after rejecting the government's "fast track" plea offer defendant was indicted for offenses triggering a mandatory minimum sentence, and was convicted after trial, yet shortly after sentencing, defendant would have been eligible for safety valve relief, so the court reduced his sentence, explaining: "Following Defendant's March 26, 2017 arrest at the Andrade, California Port of Entry, on April 20, 2017, Defendant waived indictment and was charged in a one-count Information with importation of methamphetamine in violation of 21 U.S.C. §§ 952, 960. See Case No. 17cr998-MMA-1, ECF 10, 11. This offense carried no mandatory minimum and a maximum of 20 years in prison. Defendant rejected the government's fast track offer and exercised his right to go to trial. As the Court noted at sentencing, Defendant thereafter fell “victim to the Attorney General's new policy on drug crimes,” Def. Ex. A, and on August 10, 2017, he was charged in a two-count Indictment. … This new charge triggered a mandatory minimum of 120 months, and all parties agreed that Defendant did not qualify for safety valve relief. Defendant was sentenced to 120 months in prison, accordingly. The First Step Act was signed into law just five months after Defendant was sentenced. Relevantly, the First Step Act expanded § 3553(f)'s safety valve criteria, which authorizes a court to deviate from a drug crime mandatory minimum. … In Lopez, the Ninth Circuit had occasion to consider whether subsection (1) is conjunctive or disjunctive and determined it was the former. 998 F.3d at 443. Therefore, under the current law in the Ninth Circuit, to be disqualified from safety valve relief under subsection (1), a criminal defendant must have all three circumstances present in (A)–(C). … With this in mind, the Court turns to the effect of Lopez on Defendant's circumstances. All parties agree that notwithstanding Defendant's 16 criminal history points, he would be safety valve eligible if sentenced today. According to Defendant, this has resulted in an inequitable sentencing disparity. As Defendant explains, the Court granted his request for a minor role reduction, and he would have received a two-level departure for safety valve. Thus, according to Defendant, not only would deviation from the mandatory minimum have been possible, but the Guidelines range would have adjusted to 100–125 months. Considering the Court's 31-month variance at sentencing, Defendant argues that he may well have been sentenced to 69 months. The government's position is that the Court already granted Defendant a variance. … The government also argues that Chen and the cases it approves involved significantly longer sentencing disparities, ranging from 240 to 516 months. … Defendant should not be compared to defendants who received stacked sentences, as he did not. Rather, to determine whether there is a sentencing disparity here, the Court compares Defendant to similarly situated defendants sentenced after the First Step Act and Lopez. To that end, Defendant offers persuasive statistics regarding the sentencing in this district for similarly situated defendants since passage of the First Step Act and Lopez. For example, in 2018 the average sentence for Criminal History Category VI defendants sentenced pursuant to Guideline § 2D1.1 was 83 months.2 In 2021, the average sentence was 61 months, with a median sentence of 60 months. It is patently clear that sentencing disparities resulting from non-retroactive First Step Act amendments may form part of the Court's extraordinary and compelling analysis. See Chen, 48 F.4th at 1098–99. The government does not dispute that the average sentence in this district post-Lopez is 61 months. The unavoidable result is that Defendant's sentence of 120 months is disparately longer than the custodial terms his counterparts receive in this district today. As both parties note, and the Ninth Circuit highlighted in Chen, Congress has provided that “rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 994(t). … Defendant's prison record is remarkable in numerous respects. … Defendant explains what the COVID-19 pandemic has meant to BOP operations. As of February 16, 2023, FCI Phoenix is classified at Level 1, with minimal modifications. Nonetheless, Defendant contends that he has experienced numerous lockdowns and quarantines, lasting from 10 to 14 days during his period of incarceration. … The BOP has acknowledged that the operational modifications have placed a heavy burden on inmates and their families.4 While much of the world has reverted to pre-pandemic normalcy, life in BOP custody has not—if it ever will. “A day in prison under the current conditions is a qualitatively different type of punishment than one day in prison used to be.” See United States v. Kibble, 992 F.3d 326, 335 (4th Cir. 2021) (Gregory, C.J., concurring). In an effort to keep COVID-19 at bay, inmates are often isolated or placed in solitary confinement, prison programs have been suspended or ended entirely, facilities have restricted visitation, and access to nonessential medical care is often limited. See id. (collecting cases). The extent of the modifications depends upon a facility's classification. However, FCI Phoenix has jumped from a Level 2 to a Level 3, then back down to a Level 1 in just a two-month period between late November 2022 and January 2023.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today, the BOP announced no new COVID-related deaths, leaving the total number of inmate COVID-related deaths at 314. Eleven of the inmates died while on home confinement. Staff deaths remain at

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