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May 18, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 86 (down from 103) Currently positive-testing staff: 236 (up from 225) Recovered inmates currently in the BOP: 51,730 (down from 51,790) Recovered staff: 12,635 (up from 12,632)


Institutions with the largest number of currently positive-testing inmates: Guaynabo MDC: 9 (unchanged)

Rochester FMC: 7 (down from 12)

Oklahoma City FTC: 7

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

Rochester FMC: 30 (up from 28)

Central Office HQ: 20 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

System-wide testing results: Presently, BOP has 138,786 federal inmates in BOP-managed institutions and 13,382 in community-based facilities. Today's stats: Completed tests: 128,717 (unchanged) Positive tests: 55,365 (unchanged)


Total vaccine doses administered: 317,628 (up from 317,439)


Case Note: Court reverses itself based on intervening decision holding that non-retroactive changes in law cannot support compassionate release...


In U.S. v. LUIS OLIVARES, 2022 WL 1539333 (D.S.D. May 16, 2022) (Viken, J.), the court grants Government’s reconsideration motion and denies compassionate release because intervening Eighth Circuit law holds that non-retroactive changes in law cannot support relief, explaining: "On November 8, 2021, the court vacated the May 27, 2015, judgment imposed in Mr. Olivares’ case. (Docket 1438 at p. 31) (referencing Docket 1166). On February 23, 2022, the government filed a motion for reconsideration. (Docket 1450). The motion for reconsideration was briefed by the parties. (Dockets 1455 & 1458). During informal communications with counsel, the parties agreed the court could resolve the government's motion without a hearing as the issue presented is a legal issue which had been fully briefed. Based on the analysis in this order, the government's motion for reconsideration is granted. …The 2021 Order considered the significant impact the First Step Act had on “the interface between 18 U.S.C. § 851 and21 U.S.C. § 841(b)(1).”Id.at p. 17. “As a result of the First Step Act,” Mr. Olivares's 2005 Arapahoe County, Colorado conviction did “not qualify as a prior ‘serious drug offense.’ ”Id.at p. 24 (citing18 U.S.C. § 924(e)(2)(A)(ii)). By “[s]triking the Arapahoe County conviction from the [18 U.S.C. §] 851 Information,” the court found “Mr. Olivares faces a mandatory minimum of 15 years up to life imprisonment under21 U.S.C. 841(b)(1)(A)and not a mandatory life sentence.”Id.at p. 25. “Applying the First Step Act,” the court found the inhumanity of a life sentence “constitutes a ‘extraordinary and compelling reason’ for granting a compassionate reduction in Mr. Olivares’ sentences for the convictions on counts 1 and 5 [the conspiracy to distribute methamphetamine and possession with intent to distribute methamphetamine convictions].”Id.(citing18U.S.C. §3582(c)(1)(A)(i)). …The government's motion for reconsideration submits that “[s]ince the Court issued its order, the Eighth Circuit Court of Appeals has definitively held district courts do not have such authority.” (Docket 1450 at p. 1) (citing United States v. Crandall, 25 F. 4th 582 (8th Cir. 2022)). The government argues that while the defendant “is not challenging statutorily mandated consecutive [18 U.S.C. §] 924(c) sentences, the mandatory imposition of life based on the § 851 Information follows the same legal analysis.” Id. at p. 3. Citing Crandall, the government points out the Eighth Circuit “joined those circuits that have ruled ‘that a non-retroactive change in law cannot be an extraordinary and compelling circumstance that justifies compassionate release.’ ” Id. … In response, Mr. Olivares argues “[t]he government seeks to prevent and prohibit the Court from reducing a draconian mandatory sentence—a sentence the Court did not believe was just at the time and whose view has since been vindicated by the clear Congressional intent in enacting the [First Step Act].”…. Since the 2021 Order the Eighth Circuit clearly spoke. “[W]e conclude that a non-retroactive change in law, whether offered alone or in combination with other factors, cannot contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A).” Crandall, 25 F.4th at 586. While this court firmly believes the First Step Act was intended to give district courts the authority to change a defendant's mandatory life sentence to a minimum of 15 years to life, Crandall and Taylor direct otherwise. Based on the Eighth Circuit decisions, this court has no authority to vacate Mr. Olivares’ original judgment.”)


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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