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March 30, 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 4 RRCs

Currently positive-testing inmates: 173 (up from 164) Currently positive-testing staff: 45 (down from 47) Recovered inmates currently in BOP: 44,983 (down 44,962) Recovered staff: 15,229 (up from 15,226)


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

McKean FCI: 15 (up from 9)

Yazoo City FCI: 14 (unchanged)

Lexington FMC: 12


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

Terminal Island FCI: 6 (unchanged)

Honolulu FCI: 3 (unchanged)

Seagoville FCI: 3


System-wide testing results: Presently, BOP has 145,166 federal inmates in BOP-managed institutions and 12,893 in community-based facilities. Today's stats: Completed tests: 128,651 (unchanged) Positive tests: 55,299 (unchanged)


Total vaccine doses administered: 349,307 (up from 349,263)


Case Note: Non-retroactive changes in the law cannot support CR relief, and a simple statement that relief is denied after consideration of § 3553(a) factors suffices for appellate review...


In U.S. v. McMaryion, No. 21-50450, 2023 WL 2658434 (5th Cir. Mar. 28, 2023) (published) (Oldham, J.), the Fifth Circuit, in reaffirming that ineffective assistance claims cannot be raised in a CR application, also stakes out position that non-retroactive changes in law cannot be extraordinary and compelling and, further, that the district court's simple statement that the § 3553(a) factors do not support relief is sufficient for appellate purposes, explaining: "McMaryion offers four reasons for his § 3582(c)(1) motion. The first three are not cognizable bases for compassionate release. The fourth does not have merit. First, McMaryion raises substantive challenges to the legality of his confinement. Specifically, McMaryion argues that his trial and appellate counsel were ineffective and that the Government breached his plea agreement. But because these claims are cognizable under 28 U.S.C. § 2255, they are not cognizable under 18 U.S.C. § 3582(c). See Escajeda, 58 F.4th at 186–88. Second, McMaryion argues that he should get a sentence reduction because the First Step Act reduced the statutory minimums applicable to his offenses. But Congress did not make those reductions retroactive. And a prisoner may not leverage non-retroactive changes in criminal law to support a compassionate release motion, because such changes are neither extraordinary nor compelling. See, e.g., United States v. Jenkins, 50 F.4th 1185, 1198–1200 (D.C. Cir. 2022) (so holding); United States v. McCall, 56 F.4th 1048, 1065–66 (6th Cir. 2022) (en banc) (same). Rather, “in federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.” Dorsey v. United States, 567 U.S. 260, 280, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) (emphasis added). This ordinary practice reflects a “presumption against retroactive legislation” that is “deeply rooted in our jurisprudence” and that “embodies a legal doctrine centuries older than our Republic.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). We may not usurp the legislative prerogative and use 18 U.S.C. § 3582(c)(1) to create retroactivity that Congress did not. See United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820) (“It is the legislature, not the Court, which is to define a crime, and ordain its punishment.”). Third, McMaryion briefly suggests that an amendment to the United States Sentencing Guidelines favors his early release. McMaryion did not adequately present this argument to the district court, however, so it is forfeited. See Rollins v. Home Depot, 8 F.4th 393, 397–99 (5th Cir. 2021). And in any event, changes to the Sentencing Guidelines can give rise to relief under 18 U.S.C. § 3582(c)(2), not § 3582(c)(1). … Separately, McMaryion argues that the district court committed procedural error by perfunctorily denying his § 3582(c) motion. Even if the district court committed procedural error, McMaryion would not be entitled to a remand. That's because a procedural error is by definition harmless where, as here, the prisoner's arguments fail on the merits. See FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”). And in any event, the district court did not procedurally err. True, we require that a district court provide a reason for its denial of a prisoner's compassionate release motion. See Chambliss, 948 F.3d at 693. Here, the district court denied McMaryion's motion “[a]fter considering the applicable factors provided in 18 U.S.C. § 3553(a).” So the district court provided a reason: it considered the § 3553(a) factors and found them wanting. We've already determined that such reasoning suffices. See Escajeda, 58 F.4th at 188 (upholding an identical order because the district court “did not need to say more”). … No one doubts that district courts enjoy wide discretion when considering compassionate-release motions. That includes discretion to offer lengthy explanations for denying relief under § 3582(c). The question here, however, is not whether the district court could offer a lengthy explanation after considering myriad factors—it's whether the district court must. Nothing in Concepcion or our precedent requires the second proposition. And we can find nothing in § 3582(c) that suggests Congress required a lengthy explanation by a district court denying a § 3582(c) motion. It would be especially inappropriate to add procedural requirements to § 3582(c) where Congress omitted them and also omitted number and timeliness limitations. Cf. 28 U.S.C. § 2244(b), (d). The contrary view urged by our esteemed colleague in dissent would impose endless procedural obligations on district courts—including in cases, like this one, where the § 3582(c) motion is undisputedly meritless. We hold a district court may deny relief under § 3582(c) by stating that the § 3553(a) factors do not favor relief, or alternatively, that the movant's proferred grounds for relief are not extraordinary and compelling. The district court met that standard here.”

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today, the BOP announced one new COVID-related death, bringing the total number of inmate COVID-related deaths to 315. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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