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March 9, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 69 BOP facilities and 11 RRCs

Currently positive-testing inmates: 216 (up from 180) Currently positive-testing staff: 60 (down from 62) Recovered inmates currently in the BOP: 45,320 (down from 45,365) Recovered staff: 15,191 (up from 15,189)


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

Leavenworth USP: 36

Carswell FMC: 24 (down from 25)

Oklahoma City FTC: 17 (up from 14)


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

Devens FMC: 7 (unchanged)

Terminal Island FCI: 6 (unchanged)

Carswell FMC: 5 (unchanged)


System-wide testing results: Presently, BOP has 144,700 federal inmates in BOP-managed institutions and 12,925 in community-based facilities. Today's stats: Completed tests: 128,658 (unchanged) Positive tests: 55,306 (unchanged)


Total vaccine doses administered: 348,824 (up from 348,712)


Case Note: Tenth Circuit remands because district court failed to consider defendant's change of law argument...

In U.S. v. Vann, No. 22-2111, 2023 WL 2360495 (10th Cir. Mar. 6, 2023) (unpublished) (Hughes, J.), the Tenth Circuit, noting that the parties agreed district court committed reversible error in refusing to consider serial litigator’s argument that non-retroactive change in law’s effect on sentence could be extraordinary and compelling sends the case back to the district court, explaining: "We affirmed Mr. Vann's conviction on direct appeal, United States v. Vann, 776 F.3d 746 (10th Cir. 2015), and in 2018, we denied his petition for a certificate of appealability for the denial of his initial motion under 28 U.S.C. § 2255, United States v. Vann, 715 F. App'x 865, 866 (10th Cir. 2018). Undeterred, Mr. Vann has filed nine motions that the district court has characterized as successive petitions under § 2255. See 1R. at 62–64 (detailing the motions and dispositions). Mr. Vann also filed four motions seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A). See Supp.2R. at 52–56 (first); id. at 102–07 (second); 1R. at 43–57 (third); id. at 70–74 (fourth). In response to the deluge of meritless motions, the district court entered an order prohibiting Mr. Vann “from filing any further pro se filings with this court raising claims brought in his successive § 2255 motions and arguments related to those claims that have already been decided by this court.” Supp.2R. at 108. In August 2022, Mr. Vann filed another motion for compassionate release, which is the subject of this appeal. 1R. at 70–74. In that motion, Mr. Vann raised several grounds for compassionate release, including his “extraordinary rehabilitation and accomplishments while in prison,” id. at 71; his deteriorating health, id. at 73; and a change in the law such that, if sentenced today, he would not receive a § 851 enhancement increasing the mandatory minimum from five to fifteen years, id. at 71–72. The district court denied the motion. Id. at 75. The district court determined that Mr. Vann's § 851 enhancement argument was essentially a challenge to the validity of his sentence and should have been brought under § 2255. Id. at 76. The court concluded, “this part of the motion violates the court's order imposing filing restrictions and will not be considered.” Id. As to Mr. Vann's other arguments, the court found they were properly considered under § 3582(c)(1)(A), but it denied them on the merits. Id. at 76–77. On appeal, Mr. Vann argues the district court erred by refusing to consider his change in the law argument as a proper ground for compassionate release. Mr. Vann is correct, and the Government concedes as much. We have held that changes in the law that would have reduced the defendant's sentence if they had been available at his sentencing are properly considered as supporting a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), even when those changes are not made retroactive. See United States v. McGee, 992 F.3d 1035, 1047–48 (10th Cir. 2021) … Nor can we conclude the district court's error was harmless because the disparity in mandatory minimum sentences may have influenced its exercise of its wide discretion. Accordingly, we reverse and remand to the district court so that it can consider the change in the law regarding the § 841 enhancement, along with other relevant factors, in determining whether to grant Mr. Vann compassionate relief under 18 U.S.C. § 3582(c)(1)(A).”


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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