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March 30, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 167 (down from 174) Currently positive-testing staff: 138 (down from 139) Recovered inmates currently in the BOP: 53,609 (down from 53,663) Recovered staff: 12,531 (up from 12,529)


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

Cumberland FCI: 63 (unchanged)

Otisville FCI: 16 (unchanged)

Sheridan 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 135,398 federal inmates in BOP-managed institutions and 12,955 in community-based facilities. Today's stats: Completed tests: 128,823 (unchanged) Positive tests: 55,471 (unchanged)


Total vaccine doses administered: 308,835 (up from 308,600)


Case Note: Wrongful reliance on USSG § 1B1.13 harmless...


In U.S. v. GARY JACQUES, Defendant-Appellant., No. 20-3276, 2022 WL 894695 (2d Cir. Mar. 28, 2022) (unpublished) (per curium), the Second Circuit held that although the district court erroneously held it was bound by 1B1.13, the error was harmless because it denied relief using the correct standard in defendant’s subsequent motion, and claims not raised in the second motion were not cognizable in a CR, explaining: "When it denied the first compassionate release motion, the district court said that it was bound by U.S. Sentencing Guidelines Manual § 1B1.13 in determining whether there were extraordinary and compelling reasons for relief. We subsequently held in United States v. Brooker, 976 F.3d 228, 235-36 (2d Cir. 2020), that § 1B1.13 applies only to motions for compassionate release filed by the Bureau of Prisons. Thus, contrary to the district court's view, it had discretion “to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before [it] in motions for compassionate release.” Id. at 237. The only limitation is that “[r]ehabilitation ... alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 994(t). Nonetheless, the error was harmless because it is clear from the record that the district court would reach the same decision on remand. See United States v. Mason, 692 F.3d 178, 184 (2d Cir. 2012) (“Where we identify procedural error in a sentence, but the record indicates clearly that the district court would have imposed the same sentence in any event, the error may be deemed harmless, avoiding the need to vacate the sentence and to remand the case for resentencing.”) (quoting United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009)). The district court applied the correct standard in denying Jacques's subsequent compassionate release motion, in which Jacques presented the same claims of medical vulnerability and rehabilitation and offered more evidence of prison conditions creating a risk of exposure to COVID-19. While the earlier motion raised claims regarding the validity of Jacques's conviction and sentence that were not renewed in the latter motion, those arguments were not a proper basis for a § 3582(c)(1)(A) motion in any event. … Permitting Jacques to make actual innocence arguments in this manner would enable him to pursue habeas relief through a compassionate release motion and thereby evade the procedural limitations on bringing habeas claims. Jacques's arguments as to the validity of his conviction therefore do not provide a ground for remanding to the district court.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified the fatality announced yesterday as Marvin Hersch, 82, of FCI Butner Medium. The number of inmate-related COVID deaths remains at 292. Eleven of the inmates died while on home confinement. Staff deaths remain at 7

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