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March 28, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 72 BOP facilities and 5 RRCs

Currently positive-testing inmates: 153 (down from 174) Currently positive-testing staff: 48 (unchanged) Recovered inmates currently in BOP: 45,004 (down 45,023) Recovered staff: 15,220 (up from 15,219)


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

Fort Worth FMC: 10 (unchanged)

Allenwood Medium FCI: 8

Carswell FMC: 8


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

Terminal Island FCI: 6 (unchanged)

Devens FMC: 3 (down from 4)

Grand Prairie: 3 (unchanged)


System-wide testing results: Presently, BOP has 145,252 federal inmates in BOP-managed institutions and 12,825 in community-based facilities. Today's stats: Completed tests: 128,650 (down from 128,651) Positive tests: 55,299 (unchanged)


Total vaccine doses administered: 349,249 (down from 349,251)


Case Note: CR granted because today defendant would not be subject to 15-year ACCA mandatory minimum...


In U.S. v. Willis, No. 3:12-CR-00292-HZ, 2023 WL 2625530 (D. Or. Mar. 22, 2023) (Hernandez, J.). because, inter alia, defendant today would not be subject to 15-year ACCA mandatory minimum, court reduces sentence to time served, explaining: "Defendant argues for compassionate release based on the following combination of factors: (1) under recent case law, his 180-month mandatory minimum sentence was never lawfully imposed; (2) he has served his sentence under extremely harsh conditions because of the COVID-19 pandemic and a culture of racism at Victorville USP; and (3) he has exhibited significant rehabilitation. Defendant does not claim that any these factors alone justifies reducing his sentence under 18 U.S.C. § 3582(c)(1)(A). Rather, he contends that the combination of circumstances establishes an extraordinary and compelling reason for compassionate release. … The ACCA fifteen-year mandatory minimum was applied to Defendant based on four prior convictions for drug offenses. Between 1998 and 2001, Defendant had three separate convictions in Oregon state court for delivery of crack cocaine. In 2004, he was convicted on a federal charge of possession with intent to distribute five grams or more of cocaine. Defendant has never been convicted of a violent offense. He asserts that, based on case law after his sentence was imposed, his Oregon state convictions do not qualify as predicate “serious drug offenses” that trigger the ACCA mandatory minimum. Thus, Defendant argues that his sentence was never lawfully imposed and should be reduced accordingly. The Government contends that 18 U.S.C. § 3582(c)(1)(A) does not authorize defendants to bring a legal challenge to their originally imposed sentences and that such challenges must be brought under 28 U.S.C. § 2255. According to the Government, defendants cannot avoid the statutory requirements of the federal habeas statutes by challenging their sentences through compassionate release motions. … . Defendant has filed two unsuccessful motions under 28 U.S.C. § 2255. He is foreclosed from filing another § 2255 motion unless certified to do so by a Ninth Circuit panel based on either newly discovered evidence or on a new rule of constitutional law made retroactive by the Supreme Court. See 28 U.S.C. § 2255(h). Despite the Government's contention, the Ninth Circuit recently held that a criminal defendant may challenge their original sentence through a motion under 18 U.S.C. § 3582(c)(1)(A). United States v. Chen, 48 F.4th 1092, 1098 (9th Cir. 2022). In Chen, the Ninth Circuit addressed an emerging circuit split and held that courts may consider non-retroactive changes in sentencing law along with other extraordinary and compelling factors in determining whether to grant compassionate release. … A state criminal offense is a “serious drug offense” under the ACCA if it “involve[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). Courts use a categorial approach to determine whether a particular state offense meets the ACCA definition. Shular v. United States, 140 S. Ct. 779, 784 (2020). Under the categorical approach, “[a] court must look only to the state offense's elements, not the facts of the case or labels pinned to the state conviction.” Id. This Court has determined that the Oregon state offense of delivery of controlled substances punishes a broader range of conduct than that described in 18 U.S.C. § 924(e)(2)(A)(ii). See United States v. Young, No. 1:17-cr-00125-MC, 2019 WL 1928484, at *5 (D. Or. Apr. 30, 2019) (holding that the Oregon controlled substances statutes, which permit conviction based on “mere solicitation” are broader than the federal definition of “distribution”); Ernst v. United States, 293 F. Supp. 3d 1242, 1250 (D. Or. 2017) (concluding that “Oregon's drug delivery statute is not categorically a serious drug offense under the ACCA”). Thus, the Oregon statute under which Defendant was sentenced “is categorically overbroad for the purposes of the ACCA.” Young, 2019 WL 1928484, at *5. Accordingly, Defendant's state convictions for delivery of a controlled substance would not qualify as predicate felonies under the ACCA if he were sentenced today. And if his state drug convictions are not considered predicate felonies, Defendant would not be subject to the ACCA 180-month mandatory minimum sentence that he received for his felon in possession conviction. He would face a sentence of no more than 120 months imprisonment. At the time he filed this motion, Defendant had served 126 months. Thus, Defendant has served a longer time for his felon in possession conviction than he would have without the ACCA enhancement. The Court finds that the disparity between the mandatory minimum sentence Defendant received and the maximum sentence he would face under current case law is an extraordinary and compelling reason to reduce his sentence. … The pandemic-related prison conditions at Victorville USP applied to all prisoners, not just Defendant. … Nonetheless, the generally harsh conditions at Victorville USP under which Defendant has served contributes to the analysis of extraordinary and compelling circumstances. See United States v. Brown, No. ELH-01-377, 2020 WL 5747194, at *11 (D. Md. Sept. 25, 2020) (internal quotation and citation omitted) (finding that a defendant's incarceration at Victorville “in the midst of a global pandemic has sufficiently increased the severity of the sentence beyond what was originally anticipated”). Combined with the fact that Defendant is serving a sentence that is longer than what would be imposed under current case law, the conditions under which he has been incarcerated justifies compassionate release. … Thus, taken together, the Court finds that Defendant's set of circumstances constitutes an extraordinary and compelling reason to reduce Defendant's sentence to time served.”


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 7.

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