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May 17, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 103 (down from 118) Currently positive-testing staff: 225 (up from 213) Recovered inmates currently in the BOP: 51,790 (down from 51,803) Recovered staff: 12,632 (up from 12,631)


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

Miami FDC: 15 (unchanged)

Rochester FMC: 12 (down from 14)

Guaynabo MDC: 9 (unchanged)

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

Rochester FMC: 28 (up from 27)

Central Office HQ: 20 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

System-wide testing results: Presently, BOP has 138,846 federal inmates in BOP-managed institutions and 13,360 in community-based facilities. Today's stats: Completed tests: 128,717 (up from 128,716) Positive tests: 55,365 (up from 55,364)


Total vaccine doses administered: 317,439 (up from 316,128)


Case Note: Applying categorical approach defendant, if sentenced today, would not receive career offender enhancement, so court reduces his sentence....


In U.S. v. ERNEST JAMES JOHNSON, 2022 WL 1510544 (S.D.W. Va. May 12, 2022) (Chambers, J.), the court granted defendant a reduction of sentence upon finding that application of categorical approach would result in defendant not receiving career offender enhancement, explaining: "To argue that there has been a change in circumstances sufficient to constitute extraordinary and compelling reasons, Defendant must first show that, if convicted today, the career offender designation would be inapplicable. Under the United States Sentencing Guidelines (“U.S.S.G.”), a convicted defendant will receive an enhanced sentence if the defendant is a “career offender.” U.S.S.G. MANUAL § 4B1.1. … Defendant's predicate crimes of violence at the time of sentencing included three prior offenses: a 1996 Louisiana conviction for simple burglary, a 1997 Louisiana conviction for indecent behavior with a juvenile, and a 2007 West Virginia conviction for first-degree robbery. PSR at 12-14. Defendant does not dispute that his robbery offense remains a crime of violence for sentencing purposes under Stokeling. However, Defendant argues that, if sentenced today, the other prior convictions would not qualify as crimes of violence, and thus would not count as predicate offenses for the career offender enhancement. Id. at 7-10. Because the Government argued that an intervening change in career offender designation is not an extraordinary and compelling reason, it initially did not discuss whether Defendant's previous crimes would qualify as crimes of violence. See Govt.'s Resp. at 11-14, ECF No. 153. In later briefing, it conceded that Defendant's crimes of simple burglary and indecent behavior with a juvenile no longer constitute crimes of violence as defined under the Guidelines. In determining whether a prior conviction qualifies as a crime of violence, courts must employ a “categorical approach.” Taylor v. United States, 495 U.S. 575, 588 (1990). … The categorical approach focuses on the elements, rather than the facts, of the prior offense, and sentencing courts applying the categorical approach must look at how the law underlying the conviction defines the offense, not how the defendant's particular conduct constituted an offense on a particular occasion. See United States v. Proctor, 28 F.4th 538, 545 (4th Cir. 2022).5 The question becomes whether the full range of conduct covered by the statutory definition of the state crime, including the “most innocent conduct,” would qualify as a crime of violence for purposes of § 4B1.2(a). …Defendant was convicted of simple burglary in Louisiana in 1996. ... As the Government notes, the offense could simply be committed without resorting to any force, and thus, the offense does not currently constitute a crime of violence as defined in § 4B1.2. ...Defendant was also convicted of indecent behavior with a juvenile under Louisiana law in 1997. … The offense can be committed without any type of force, or even contact, with a juvenile and does not meet the definition under the force clause. Thus, this conviction does not qualify as a predicate offense for the career offender enhancement. Because Defendant, if sentenced today, would no longer qualify as a career offender, the Court must analyze whether this change in the Guidelines advisory range can constitute extraordinary and compelling reasons. The Government argues that a change in classification as a career offender categorically does not rise to the heightened standard required under McCoy, while Defendant argues that it does, because of the resulting disparity in the advisory Guidelines range. … Here, if sentenced without the career offender enhancement in 2012, Defendant's Guidelines range would have been 84 to 105 months for all counts (besides Count Ten, which carried a mandatory minimum of 60 months).7 Instead, with the career offender enhancement, his Guidelines range (excluding Count Ten) was 151 to 188 months. If sentenced today, Mr. Johnson would also benefit from a change in the drug offense tables, resulting in a sentence of 70 to 87 months.8 Instead, he was sentenced to 188 months on those charges, which, even assuming he was sentenced at the highest end of the Guidelines range today, is a difference of 101 months or 8.4 years. … Accordingly, Defendant has shown concerted efforts at rehabilitation, and even though he has sustained infractions while in prison, the Court cannot say that they warrant a 101-month increase in prison time. … For the foregoing reasons, Defendant's Request for a Reduction in Sentence is GRANTED. The Court ORDERS that Defendant's sentence of incarceration be reduced to 159 months.”)


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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