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March 28, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 160 (up from 149) Currently positive-testing staff: 138 (up from 137) Recovered inmates currently in the BOP: 53,724 (down from 53,799) Recovered staff: 12,527 (unchanged)


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

Cumberland FCI: 57 (unchanged)

Sheridan FCI: 9 (unchanged)

Otisville FCI: 9 (unchanged)

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

Central Office HQ: 30 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

Victorville USP: 13 (unchanged)

System-wide testing results: Presently, BOP has 135,099 federal inmates in BOP-managed institutions and 12,980 in community-based facilities. Today's stats: Completed tests: 128,823 (down from 128,838) Positive tests: 55,471 (down from 55,486)


Total vaccine doses administered: 308,503 (up from 308,362)


Case Note: Courts sides with Sixth Circuit faction holding that non-retroactivity can never be extraordinary and compelling...


In U.S. v. Liston Watson, 2022 WL 847289 (S.D. Ohio Mar. 22, 2022) (Dlott, J.), the court weighed in on the intra-Sixth Circuit split, and sides with faction holding non-retroactivity can never be extraordinary and compelling explaining: "Watson moves for compassionate release on two grounds. First, he asserts that he would be entitled to a lower sentence on the charges to which he pleaded guilty if he were sentenced today. Whether a district court may consider a non-retroactive change in law as a basis to find that extraordinary and compelling reasons support compassionate release under 18 U.S.C. § 3582(c)(1)(A) is the source of an “intractable” “intra-circuit split.” United States v. McCall, 20 F.4th 1108, 1116 (6th Cir. 2021) (Kethledge, J., dissenting), petition for rehearing en banc filed (Feb. 1, 2022). Initially, two panels of the Sixth Circuit Court of Appeals held that non-retroactive changes in sentencing law rendered by the First Step Act did not qualify as extraordinary and compelling reasons under § 3582(c)(1)(A). See United States v. Wills, 997 F.3d 685, 688 (6th Cir. 2021); United States v. Tomes, 990 F.3d 500, 505 (6th Cir. 2021), cert denied, 142 S Ct. 780 (Jan. 10, 2022). Then, however, in United States v. Owens, 996 F.3d 755, 763–764 (6th Cir. 2021), a divided panel of the Sixth Circuit Court of Appeals held that although a district court cannot rely on a non-retroactive First Step Act change in law alone, it may do so combined with other factors to determine whether an extraordinary and compelling reason for compassionate release exists. After that decision was issued, another divided panel of the Sixth Circuit held in Jarvis, that district courts cannot consider non-retroactive sentencing amendments when determining a defendant's eligibility for compassionate release, whether alone or in combination with other factors. 999 F.3d at 445–446. Jarvis disregarded Owens on the basis that the decision did not follow the controlling authority of Tomes. Id. Next, in Hunter, the Sixth Circuit held that the Supreme Court's non-retroactive decision in United States v. Booker, 543 U.S. 220 (2005)— rendering the Sentencing Guidelines advisory—did not qualify as an extraordinary and compelling reason for release. 12 F.4th at 564. Hunter, like Jarvis, distinguished Owens for failing to follow the binding authority of Tomes. Id. at 564 n.4. Despite the definitive language used in Hunter, the disagreements among panels continued in the Sixth Circuit. The majority in McCall declared Owens controlling authority, and disregarded Jarvis and Hunter. 20 F.4th at 1114. It determined that the non-retroactive decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019),3 could be considered to determine whether a defendant had established extraordinary and compelling reasons for compassionate release. Id. at 1113–114, 1116. Finally, and most recently, a panel of the Sixth Circuit conversely held in United States v. McKinnie, 24 F.4th 583, 588 (6th Cir. Jan. 26, 2022), that the non-retroactive sentencing law decision in Havis was not an extraordinary and compelling reason for an inmate's release, whether considered alone or in combination with other factors. The McKinnie court stated that McCall was wrongly decided and that neither Owens nor McCall should be followed:

That leads us to our recent decision in United States v. McCall. Writing against this settled precedential backdrop, McCall nonetheless suggested that Hunter need not be followed because it was decided after Owens. See United States v. McCall, 20 F.4th 1108, 1112–14 (6th Cir. 2021). That suggestion is difficult to accept when Owens did not address the question posed in Hunter: are non-retroactive judicial decisions “extraordinary and compelling reasons” to reduce an inmate's sentence under § 3582(c)(1)(A)? In other words, whether one accepts Tomes or Owens, there is no fair basis for not honoring Hunter, which ultimately resolved a question different from that raised in the prior cases. McCall, it is fair to say, disagreed with the holding in Hunter. But as McCall was decided after Hunter, the law of the Circuit doctrine required McCall to follow the prior precedent. See Wright, 939 F.3d at 700. See generally United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017) (“One panel of this court may not overrule the decision of another panel.”). Adherence to that longstanding doctrine allows our Court to speak with one voice, whatever that voice may say in a particular context. Any other approach would leave district courts scrambling to assess a wave of conflicting appellate court decisions. And it would undermine any ability for parties to rely on a consistent application of the law, concerns that are at their apex in this criminal law setting, where substantial liberty interests are at stake. See United States v. Cox, 871 F.3d 479, 494 (6th Cir. 2017) (Sutton, J., concurring); United States v. Diaz-Bastardo, 929 F.2d 798, 799 (1st Cir. 1991) (Selya, J.). McKinnie, 24 F.4th at 589.

District courts have been caught in the crossfire of this intra-circuit split, but it is possible that the Sixth Circuit will grant an en banc rehearing in McCall to resolve the dispute. In the interim, the Court is persuaded that Owens and Hunter should be controlling based on the analysis set forth in the McKinnie case. The Court holds that a non-retroactive change in sentencing law, alone or in conjunction with other factors, cannot serve as the extraordinary and compelling reason for a reduction in sentence pursuant to § 3582(c).”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified one additional inmate COVID-related fatality, increasing the inmate-related COVID death toll to 291. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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