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May 8, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 46 BOP facilities and 6 RRCs

Currently positive-testing inmates: 244 (up from 243) Currently positive-testing staff: 30 (down from 31) Recovered inmates currently in BOP: 43,850 (down from 43,885) Recovered staff: 15,276 (up from 15,275)


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

Yazoo City Low FCI: 136 (down from 137)

Alderson FPC: 49 (up from 47)

Yazoo City Medium FCI: 7(unchanged)


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

Forrest City Low FCI: 3 (unchanged)

Central Office HQ: 2 (unchanged)

Anderson FPC: 1


System-wide testing results: Presently, BOP has 145,405 federal inmates in BOP-managed institutions and 13,627 in community-based facilities. Today's stats: Completed tests: 128,637 (down from 128,640) Positive tests: 55,285 (down from 55,289)


Total vaccine doses administered: 350,233 (up from 350,203)


Case Note: Defendant with low guidelines who has served 40% of mandatory minimum 60-month sentence and suffers from substantial medical conditions granted compassionate release with condition of home confinement...


In U.S. v. STANLEY LEE LUMBARDY, Defendant., No. CR. 19-50107-JLV, 2023 WL 3294344 (D.S.D. May 5, 2023), the court granted compassionate release to a defendant who has served 40% of a 60-month mandatory minimum sentence, and who has low guidelines and substantial medical conditions, explaining:


"A. EXTRAORDINARY AND COMPELLING REASONS ...According to the Centers for Disease Control (“CDC”), “older adults are at highest risk of getting very sick from COVID-19. More than 81% of COVID-19 deaths occur in people over age 65. The number of deaths among people over age 65 is 97 times higher than the number of deaths among people ages 18-29 years.” https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited April 4, 2023). Mood disorders, including major depression, and hypertension are health factors which “can make you more likely to get very sick from COVID-19.” Id. In conjunction with his age and serious health conditions, Mr. Lumbardy's incarceration exacerbates the risk of infection. FCI Englewood currently has one COVID-19 positive inmate and no positive staff members. ... Though currently there are few active cases of COVID-19 among inmates at FCI Englewood, that has not previously been the case. With a population of 1,104 inmates, FCI Englewood has had 391 inmates and 139 staff members recover and two inmates have died from COVID-19. Id.

The CDC has identified factors that increase community spread of COVID-19 and individual risk, including crowded situations, enclosed spaces and close or physical contact among people, especially for longer durations.... The court recognizes the efforts BOP has taken to prevent and mitigate outbreaks. ... This includes the BOP's recent implementation of a COVID-19 vaccination program. As of April 4, 2023, the BOP has administered 349,408 doses of COVID-19 vaccines systemwide. https://www.bop.gov/coronavirus/(last visited April 4, 2023). Nevertheless, despite the efforts to slow the spread of COVID-19 in prisons, the practical reality is many of the factors increasing community spread and individual risk of exposure to the virus are simply unavoidable in a prison setting.

Nor can the court ignore the potential of infection when the risk for Mr. Lumbardy is significant. The new strains and variants of COVID-19 only add to the risk and uncertainty. At age 72 with major depression, anxiety disorder and hypertension, Mr. Lumbardy is among the individuals the CDC deems to be at a higher risk of developing serious complications or death if he were to contract COVID-19. See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html.

Based on a careful review of his medical records detailing the conditions he faces, the court finds Mr. Lumbardy's major health issues are chronic. That is, his conditions will only persist and likely worsen over time. During the COVID-19 pandemic, Mr. Lumbardy's conditions significantly diminish his ability to provide self-care within the environment of a correctional facility, putting him at risk of severe illness—and even death—should he contract the virus. The court finds Mr. Lumbardy's chronic and severe medical conditions make him especially vulnerable to COVID-19, even compared to other individuals incarcerated in FCI Englewood or other BOP facilities. Mr. Lumbardy's mandatory minimum sentence was not intended to be a death sentence. United States v. Rodriguez, 451 F. Supp. 3d 392, 407 (E.D. Pa. 2020). *6 The court finds Mr. Lumbardy meets his burden of proof and presents extraordinary and compelling reasons under § 3582(c)(1)(A)(i).

B. SECTION 3553(a) FACTORS Against these findings, the court must consider if compassionate release comports with the § 3553(a) factors. Those sentencing factors are:

1. the nature and circumstances of the offense and the history and characteristics of the defendant; 2. the need for the sentence imposed—

a. to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; b. to afford adequate deterrence to criminal conduct; c. to protect the public from further crimes of the defendant; and d. to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.]

18 U.S.C. § 3553(a). In Mr. Lumbardy's case, the “nature and circumstances of the offense”—attempted receipt of child pornography—is serious. 18 U.S.C. § 3553(a)(1). “[T]he history and characteristics of the defendant,” requires the court to consider the defendant as a whole person. Koon v. United States, 518 U.S. 81, 113 (1996). Other than the current offense, Mr. Lumbardy has no criminal history. See PSR ¶¶ 25 & 26. His total criminal history score for purposes of the U.S.S.G. calculations was “0.” Id. ¶ 27.

The court finds Mr. Lumbardy has conducted himself in a positive manner while in BOP custody. As of April 9, 2023, he has served 40 percent of his 60-month sentence without any disciplinary write-ups and has been an active participant in BOP programing. (Docket 73 at pp. 100-101 & 105). He is considered a low security risk. Id. at p. 102. Based on this information as well as a review of Mr. Lumbardy's PSR and other documents considered at the 2021 sentencing hearing, the court believes Mr. Lumbardy is a low to no risk of reoffending in either the offense of conviction or any other offense for that matter.

At sentencing, the court was not permitted to consider the § 3553(a) factors for a sentence below the mandatory minimum sentence. Based on the court's policy disagreement with United States Sentencing Guidelines § 2G2.2(b)(6), relating to the use of a computer to commit the offense, the court would have varied downward to a total offense level of 17, which with a criminal history I would have resulted in a total guideline range of imprisonment of 24 months to 30 months. (Docket 69-1 at p. 5). In the court's view a downward variance from the Sentencing Guidelines, without consideration of the mandatory minimum sentence, would have “reflect[ed] the seriousness of the offense, ... promote[d] respect for the law, and ... provide[d] just punishment for the offense ... [and would have] afford[ed] adequate deterrence to [future] criminal conduct” by the defendant. 18 U.S.C. §§ 3553(a)(2)(A) & (B).

Considering the length of the defendant's time in prison and his behavior while incarcerated, as well as the supervised release special conditions imposed at sentencing, additional incarceration is not necessary “to protect the public from further crimes of the defendant.” Id. § 3553(a)(2)(C). Mr. Lumbardy's obligation to comply with the terms of supervised release would best “provide the defendant with ... correctional treatment in the most effective manner.” Id. § 3553(a)(2)(D).

Incarceration is not the only “kind[ ] of sentence[ ] available.” Id. at § 3553(a)(3). A noncustodial sentence will limit Mr. Lumbardy's liberty interests through supervised release, and he will face harsh consequences if he violates the special conditions activated upon his release from BOP custody. United States v. Gall, 374 F. Supp. 2d 758, 763 (S.D. Iowa 2005), rev'd, 446 F.3d 884 (8th Cir. 2006), rev'd, 552 U.S. 38 (2007). The sentencing statute mandated a mandatory minimum sentence, but this is just one factor for the court to consider. 18 U.S.C. § 3553(a)(4). At this juncture, use of the First Step Act will not create “unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Id. at § 3553(a)(6). The court finds compassionate release is appropriate and Mr. Lumbardy will not pose a danger to the public.

On careful balance of the § 3553(a) factors, the court finds compassionate release is appropriate. The court concludes Mr. Lumbardy's time in custody was sufficient to adequately deter him from future criminal conduct. The government's concerns that Mr. Lumbardy has not served enough of his sentence in custody will be addressed through conditions of supervised release which will include imposing a lengthy period of home confinement. This will further limit Mr. Lumbardy's liberty interests. He will face harsh consequences if he violates his conditions of supervised release.

C. CONCLUSION Mr. Lumbardy met his burden of proof and presented “extraordinary and compelling reasons” warranting a sentence reduction under § 3582(c)(1)(A).(i). The court does not have authority to modify the defendant's sentence to home confinement. United States v. Amarrah, 458 F. Supp.3d 611, 620 (E.D. Mich. 2020). The court does, however, retain the authority to reduce Mr. Lumbardy's sentence to time served and impose a condition of home detention as a condition of his supervised release. See id. ORDER Based upon the above analysis it is...

ORDERED that defendant's motion for compassionate release (Docket 71) is granted.

IT IS FURTHER ORDERED that the defendant's sentence of imprisonment is reduced to time served. IT IS FURTHER ORDERED that court further imposes an additional special condition of supervised release of home confinement for a period of 24 months and the defendant shall comply with the terms of the Home Confinement Participant Agreement. In its discretion, the United States Probation Office may utilize appropriate location monitoring technology to ensure defendant's compliance with home confinement."


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The total number of inmate COVID-related deaths is 317. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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