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May 11, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 104 (down from 113) Currently positive-testing staff: 179 (down from 180) Recovered inmates currently in the BOP: 51,947 (down from 52,009) Recovered staff: 12,627 (up from 12,612)


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

Miami FDC: 17 (down from 24)

Rochester FMC: 11 (unchanged)

Oklahoma City FTC: 8

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

Rochester FMC: 21 (up from 20)

Central Office HQ: 20 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

System-wide testing results: Presently, BOP has 138,214 federal inmates in BOP-managed institutions and 13,363 in community-based facilities. Today's stats: Completed tests: 128,723 (unchanged) Positive tests: 55,371 (unchanged)


Total vaccine doses administered: 316,422 (up from 316,271)


Case Note: Mobster gets six-year sentence reduction after consideration of several factors, including time served in state case on related offense but not previously credited toward federal sentence...


In THOMAS REYNOLDS, Petitioner, v. UNITED STATES OF AMERICA, 2022 WL 1444167 (E.D.N.Y. May 6, 2022) (Garaufis, J.) the court, although denying 2255 alleging sentencing court should have credited him for time served in a related case on procedural grounds, addressed merits because the same facts were relevant to its decision to grant release under 3582(c)(1)(A), explaining: "Thomas Reynolds was a soldier in the Bonanno crime family of La Cosa Nostra. … Judge Korman initially sentenced Reynolds to life, but Reynolds successfully moved under 28 U.S.C. § 2255 to vacate that sentence on the basis that he had been promised a guilty plea would result in something below a life sentence. Reynolds and the Government then entered into a second plea agreement that provided for a sentence of 36 to 42 years’ imprisonment. … Shortly thereafter, Reynolds wrote to the court, challenging his sentence on the basis that he “did not get credit for” several years of federal and state time served for a prior gun offense. … The court apparently did not rule on this motion. … In March 2021, Reynolds moved for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). … The court proceeds to consider the merits of Reynolds's § 2255 petition—although it is procedurally barred—solely because the petition's substantive merit may be a relevant factor in determining whether a sentence reduction is justified under 18 U.S.C. § 3582(c)(1)(A). See United States v. Reid, No. 05-CR-596 (ARR), 2021 WL 837321, at *5 (E.D.N.Y. Mar. 5, 2021) (“[P]urely legal injuries that could have been raised in habeas petitions or direct appeals” may nonetheless be relevant under § 3582(c)(1)(A) because “the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.”). Reynolds argues that his 2004 sentence violated U.S.S.G. § 5G1.3 because his time spent in state and federal custody on a prior gun offense was not taken into account. At the 2004 resentencing, Reynolds's attorney suggested that, of the three and a half years that Reynolds spent in state custody on that gun charge, he could possibly be given credit for “the last nine months,” which “he had spent in federal custody.” (Resentencing Tr. (Dkt. 798-6) at 12:2-13:2.) In sentencing Reynolds to 42 years, Judge Korman did not mention, on the record, the time Reynolds had served in state or federal custody for the gun offense. Reynolds suggests that § 5G1.3 required Judge Korman to consider that time served. Reynolds's argument is convincing insofar as “[t]he purpose of § 5G1.3 is to prevent double-counting of the same conduct in two separate sentences.” United States v. Lavanture, 102 F. App'x 198, 202 (2d Cir. 2004). However, § 5G1.3, in clear terms, applies only to state terms of imprisonment that are partially “undischarged” or wholly “anticipated.” U.S.S.G. § 5G1.3; see United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998) (“If the defendant has completed his state prison term before the federal sentence is imposed, § 5G1.3 does not apply.”). Because Reynolds's sentence for the gun offense was fully discharged in February 2000, § 5G1.3 does not apply. (Mot. to Vacate at 11.) Nonetheless, the court notes that the purpose of § 5G1.3—to prevent double-counting—would be furthered by granting Reynolds credit for his state time served. … Although it is the court's understanding that Reynolds does not have a medical condition that would counsel in favor of immediate release, such as a terminal illness, the pandemic is still a relevant factor weighing in favor of a sentence reduction because “the risk of suffering severe health consequences if he contracts COVID-19, coupled to the severe conditions imposed by the concomitant lockdowns and restrictions that are necessary to ensure [Reynolds's] safety, means that the actual severity of [Reynolds's] sentence as a result of the COVID-19 outbreak exceeds what the Court anticipated at the time of sentencing. … In aggregate, these various factors—Reynolds's current age and the age at which his crimes were committed, Reynolds's evidently substantial rehabilitation, the COVID-19 pandemic and the resulting harsh conditions of custody, and the fact that Reynolds's time served in state custody on a charge related to his federal racketeering sentence was apparently not considered at his 2004 resentencing—constitute “extraordinary and compelling reasons,” consistent with the applicable policy statement, that justify moderately reducing Reynolds's sentence. … Reynolds seeks immediate release. … After considering the § 3553(a) factors, the court agrees: such an extreme reduction would not reflect the seriousness of, or provide just punishment for, Reynolds's egregious conduct, in particular his “brutal” murder of Judith Shemtov and his “systematic commission of violent offenses,” including other murders, bank robberies, and drug trafficking. (Resentencing Tr. at 20:13-20:18.) Nonetheless, the court finds that a moderate sentence reduction of six years, down to a total of 36 years’ incarceration, is justified under § 3553(a). Reynolds will still serve 36 years, a number within the range agreed to by the Government and Reynolds in his 2003 plea agreement. This sentence, nearly half the average lifetime, reflects the seriousness of the offense, constitutes just punishment, and affords adequate deterrence.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified two additional COVID-related inmate fatalities, both occurring in January, those of Saousoalii Siavii, 43 of USP Leavenworth and Francisco Aybar, 81, of FCI Englewood, and has raised the number of inmate fatalities to 295. Eleven of the inmates died while on home confinement. Staff deaths remain at 7



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