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March 2, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG



Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 67 BOP facilities and 8 RRCs

Currently positive-testing inmates: 174 (up from 165) Currently positive-testing staff: 61 (up from 60) Recovered inmates currently in the BOP: 45,401 (down from 45,497) Recovered staff: 15,179 (up from 15,178)


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

Carswell FMC: 31 (down from 33)

Allenwood Low FCI: 14 (unchanged)

Oklahoma City FTC: 14 (up from 11)


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

Devens FMC: 7 (unchanged)

Terminal Island FCI: 5 (unchanged)

Carswell FMC: 4 (unchanged)


System-wide testing results: Presently, BOP has 144,452 federal inmates in BOP-managed institutions and 12,860 in community-based facilities. Today's stats: Completed tests: 128,655 (up from 128,653) Positive tests: 55,303 (up from 55,301)


Total vaccine doses administered: 348,486 (up from 348,263)


Case Note: Defendant’s compassionate release motion alleging that prosecutor's misconduct was an extraordinary and compelling circumstance in fact was a successive § 2255 motion...


In U.S. v. Wesley, No. 22-3066, 2023 WL 2261817 (10th Cir. Feb. 28, 2023) (published) (Tymkovich, J.), the Tenth Circuit affirms district the court’s finding that defendant’s compassionate release motion alleging that prosecutor's misconduct was an extraordinary and compelling circumstance, in fact was a successive § 2255 motion, explaining: "Wesley's motion asserted various grounds for finding extraordinary and compelling reasons in his case, including the alleged prosecutorial misconduct. The district court concluded that the claim of prosecutorial misconduct must be interpreted as a challenge to the constitutionality of his conviction and sentence, which can only be brought under § 2255. Because Wesley had previously brought a § 2255 motion attacking the same judgment, and because this court had not authorized him to file another one, the district court dismissed that portion of Wesley's motion for lack of jurisdiction. … On appeal, Wesley challenges the district court's jurisdictional dismissal. He has not moved for a certificate of appealability (COA), but our case law requires one for this appeal to proceed. … We find the question debatable among jurists of reason, so we grant a COA. On the merits, however, we agree with the district court that Wesley's motion included a successive § 2255 claim because it attacked the validity of his sentence. … Wesley unsuccessfully requested relief three times: on direct appeal, through a § 2255 motion, and in a pandemic-related motion for compassionate release. Then, in December 2021, Wesley filed a second compassionate release motion. … The bulk of Wesley's motion focused on the prosecutor's alleged misconduct. His theory depended on showing that the two witnesses on whom the district court relied in determining the drug quantity—Humphrey and Santa-Anna—knowingly testified to more drugs than were actually involved, and they did so because the prosecutor convinced them to. He did not have evidence directly from Humphrey or Santa-Anna, but he did present statements (some of them sworn) from others who testified, or who were asked to testify, at his trial. … If Wesley's allegations against the prosecutor are true, her conduct would violate the Fifth Amendment's due process clause. See Giglio v. United States, 405 U.S. 150, 153–54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). This is the sort of claim the court normally sees in a § 2255 context. … Wesley insists he is not invoking § 2255. He asserts that the evidence of prosecutorial misconduct supports a sentence reduction under the compassionate release statute, without regard to whether the alleged misconduct is also a constitutional violation that might justify § 2255 relief. The advantage of this approach is that he can raise the basis for what would otherwise be a § 2255 claim, yet without the restrictions imposed by § 2255. As we discuss below, we disagree that § 3582 can be used to circumvent the procedural and substantive requirements of § 2255. … Wesley interprets Maumau to stand for the proposition that “extraordinary and compelling reasons” is limitless, subject only to the district court's discretion. … But in Maumau, whether “extraordinary and compelling reasons” can include matters that, if true, would demonstrate the invalidity of the conviction or sentence, was not before this court. … Wesley has not yet asserted the alleged prosecutorial misconduct in a motion for authorization under § 2255(h). Instead, he has insisted that compassionate release and § 2255 are independent forms of relief, so it does not matter if he could have brought his claim through § 2255. … Notably, at oral argument Wesley's counsel asserted the district court motion should not have been treated as a § 2255 motion because it could not have satisfied § 2255(h). … Counsel says Wesley is challenging only his sentence, not his guilt, so a motion for authorization under § 2255(h)(1) based on prosecutorial misconduct was not available.3 Regardless, Wesley does not claim his presumed inability to satisfy § 2255(h)(1) should be accepted as a reason to deem his circumstances extraordinary and compelling for purposes of compassionate release. … . In Wesley's view, a compassionate release motion could include the sorts of claims normally raised in a § 2255 motion, but there is no argument that a § 2255 motion can include the sorts of claims raised in a compassionate release motion (e.g., rehabilitation, medical challenges, etc.). Similarly, the compassionate release statute says nothing about the timing of such motions, or whether a prisoner can bring them serially, whereas § 2255 places explicit restrictions on both. Thus, looking at the two statutes in context, § 2255 is presumptively the vehicle by which federal prisoners must raise challenges to their convictions or sentences. … Thus, under the system for which Wesley advocates, a district court has discretion to deny relief even if the prisoner proves an error or defect of constitutional magnitude. It is hard to imagine a court denying relief to such an error. Yet this incongruous outcome allowed by Wesley's interpretation of § 3582 as compared to § 2255 seems to be precisely the sort of thing for which we would expect to see a “clear intention,” Morton, 417 U.S. at 550, 94 S.Ct. 2474, yet Wesley offers none. Fourth, the compassionate release statute requires the district court to “consider[ ] the factors set forth in section 3553(a) to the extent that they are applicable.” … Arguably, none of these factors applies to someone wrongfully convicted and sentenced. There is no indication Congress intended to create the possibility of a sentencing proceeding in which all § 3553(a) factors are irrelevant. … Fifth, the most a district court can do for a defendant who merits relief under § 3582(c)(1)(A)(i) is re-sentence him to time served, thereby releasing him. But there is still a criminal judgment against him—it will remain on his record, potentially influencing the rest of his life. Again, as compared to the more-specific remedy in § 2255 (through which the district court can vacate the conviction), we would expect a clear intent from Congress that it intended the compassionate release statute to preserve the trailing consequences of a criminal sentence, even for those who were convicted or sentenced erroneously. … A final question remains. If a district court receives a compassionate release motion that comprises or includes a claim governed by § 2255, should the court (1) treat it as a compassionate release motion, although with a flawed (or partially flawed) basis; or (2) treat the part governed by § 2255 as if explicitly brought under § 2255 and handle it accordingly (including dismissal for lack of jurisdiction if appropriate)? Here, the district court took the second approach, but other courts in this circuit have occasionally taken the first, see Mata-Soto, 861 F. App'x at 253–55. We conclude the district court's approach in this case was correct. In all other contexts in which defendants have (following direct appeal) attempted to raise § 2255-like claims outside of § 2255, we have held that such a motion, however captioned or argued, must be treated as a § 2255 motion. … The parties give us no reason to treat a motion filed under § 3582(c)(1)(A)(i) differently. Thus, as to the portion of Wesley's motion arguing a defect in his sentence based on prosecutorial misconduct, the district court correctly refused to exercise jurisdiction.”


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 312. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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