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May 13, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 115 (up from 111) Currently positive-testing staff: 204 (up from 195) Recovered inmates currently in the BOP: 51,852 (down from 51,879) Recovered staff: 12,631 (up from 12,628)


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

Miami FDC: 17 (unchanged)

Rochester FMC: 12 (down from 13)

Guaynabo MDC: 9 (unchanged)

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

Rochester FMC: 27 (up from 26)

Central Office HQ: 20 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

System-wide testing results: Presently, BOP has 138,513 federal inmates in BOP-managed institutions and 13,453 in community-based facilities. Today's stats: Completed tests: 128,725 (up from 128,724) Positive tests: 55,373 (up 55,372)


Total vaccine doses administered: 316,776 (up from 316,729)


Case Note:


In U.S. v. DION NELSON, 2022 WL 1469465 (E.D.N.Y. May 10, 2022) (Garaufis, J.), the court acknowledged that rehabilitation alone is not sufficient reason to grant compassionate relief but here, with other circumstances, sufficed, explaining: "On April 30, 2012, Nelson pled guilty to Count Two of the superseding indictment, unlawful use of a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(iii). (Judgment (Dkt. 148).) The parties stipulated that Nelson discharged a firearm in relation to the crime charged in Count One and that “he is accountable for the distribution of at least 5 kilograms of marijuana and a quantity of cocaine.” … The court sentenced Nelson to a 300 month (25 year) term of imprisonment to be followed by five years of supervised release. … The court cited the “breathtaking” stash of loaded weapons and combat gear that Nelson possessed and determined that it could not “overlook a lifetime of violence, guns, drugs.” … On April 15, 2021, Nelson moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1) (A), often referred to as the compassionate release statute. ...He argued that there were extraordinary and compelling reasons for a sentence reduction, including the COVID-19 pandemic and evidence of his rehabilitation and positive contribution to society. … In this case, the Government argues that Nelson's rehabilitation and activities while incarcerated do not rise to the level of extraordinary and compelling, nor do any issues related to the COVID-19 pandemic. The court disagrees. … Although rehabilitation alone is not sufficient to create extraordinary and compelling circumstances, it is nonetheless an important aspect of the analysis. See Brooker, 976 F.3d at 237-38; see also United States v. Torres, 464 F. Supp. 3d 651, 661 (S.D.N.Y 2020) (“[R]ehabilitation is relevant to the question of whether a sentence should be reduced and that rehabilitation, when considered together with other equitable factors, could constitute extraordinary and compelling reasons.”). … Nelson has taken accountability for his past actions. He demonstrates an understanding of the gravity of his criminal behavior and has fully renounced his gang affiliation, resulting in his transfer to a “non-active gang facility,” where he currently is incarcerated, for his own safety. (See Mot. to Reduce at 7; Reply (Dkt. 269) at 5.) Ten letters from supervisors, fellow inmates, and family and friends have been submitted in support of this application. … Today, Nelson shows a commitment to making positive contributions to society. For more than five years, Nelson has worked with the True 2 Life organization, an anti-gun violence initiative that works to steer at-risk individuals in the right direction. (Ltr. from Central Family Life Ctr. (Dkt. 265) at ECF pp. 21-22.) He provided information about gang life that has helped True 2 Life “mediate many conflicts with the communities of the North Shore of Staten Island.” (Id.) The organization is prepared to continue its relationship with Nelson after his release by offering him a fulltime position as a Violence Interrupter. (See id.) Together, these facts portray a person who is not only rehabilitated, but who has made extraordinary efforts to be a positive contributor to society. The Government responds that because he has not helped thousands of at-risk individuals like the Torres defendants, Nelson's actions cannot rise to the level of “extraordinary and compelling.” (Opp'n to Mot. to Reduce at 9.) The court disagrees: The fact that Nelson does not yet have a thirty-year prison record to reflect his rehabilitation should not be disqualifying. As previously noted, the “death or incapacitation of the caregiver of the defendant's minor child” can on its own be an extraordinary and compelling reason for a sentence reduction. In 2016, Nelson's wife died, leaving his now fourteen-year-old daughter in the custody of a relative. (See Ltr. from D. Wheatley (Dkt. 265) at ECF p. 23; Ltr. from T. Nelson (Dkt. 265) at ECF p. 32.) Nelson's daughter has been having emotional and mental difficulties, no doubt in part due to the absence of both of her parents. … This change in family circumstances is an extraordinary and compelling factor counselling in favor of reuniting Nelson with his daughter. … Although the court generally agrees with the Government that Nelson has not demonstrated that he is a high-risk individual, the court still considers the pandemic prison conditions as a factor in its analysis. … For at least fourteen months, visitations, including those with family members, were prohibited, and educational programs stalled. (Reply at 9.) Although the record does not describe every detail of FCI Fairton's pandemic procedures, the BOP's policy has generally been to sharply limit time outside an inmate's unit for any purpose, even using phones or accessing the library. Accordingly, the harsh prison conditions Nelson suffered during the pandemic are relevant to the determination of whether extraordinary and compelling circumstances exist. … Having found extraordinary and compelling circumstances consistent with the applicable policy statement, the court turns to the § 3553(a) factors. At sentencing, this court stated, “I appreciate the defendant's statement that I accept, in which I accept his sincerity of the moment, but I cannot overlook a lifetime of violence, guns, drugs.” … Nelson's 25-year sentence is well above the statutory minimum of ten years. Discharging a firearm in connection to drug trafficking under § 924(c) is a serious offense. At the time of sentencing, an upward departure from the Guidelines was necessary to promote a sentence in accordance with the § 3553(a) factors. Having now served approximately half of his term of imprisonment, however, Nelson is no longer a threat to the community. His time spent incarcerated has both punished Nelson and deterred him from future unlawful conduct. Nelson writes, “at the time of sentencing I didn't understand why I was giv[en] such a severe sentence. I didn't have the foresight to see that you were saving my life as well as protecting the public from a misguided individual,” and that with a chance to re-join the community, he will continue to volunteer as a “way I could pay back some of my debit [sic] to society.” (Apr. 13, 2022 Ltr. (Dkt. 276).) As Nelson stands today, the sentence he has already served, which exceeds the statutory minimum, adequately promotes respect for the law. … For the reasons stated above, Nelson's [265] motion to reduce is GRANTED, and his sentence to is reduced to time served, followed by a period of supervised release for five years, during which all previously imposed conditions will apply.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no additional COVID-related inmate fatalities, leaving the total at 295. Eleven of the inmates died while on home confinement. Staff deaths remain at 7



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