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November 10, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 158 (down from 173) Currently positive-testing staff: 246 (down from 281) Recovered inmates: 42,524 (down from 42,571) Recovered staff: 8,364 (up from 8,322)


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

Canaan UPS: 40 (unchanged)

Terre Haute FCI: 29 (unchanged)

Forrest City Medium FCI: 14 (unchanged)

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

Florence ADMAX USP: 13

McKean FCI: 13

Carswell FMC: 13 (unchanged)

System-wide testing results: Presently, BOP has 133,759 federal inmates in BOP-managed institutions and 14,741 in community-based facilities. Today's stats: Completed tests: 125,126 (up from 125,106) Positive tests: 42,262 (down from 42,322)


Total vaccine doses administered: 246,259 (down from 245,279)

Case Note: Defendant granted compassionate release from life sentence previously mandated by § 851 filing, but which now would not be required under non-retroactive changes to § 851...


In U.S. v. LUIS OLIVARES, 2021 WL 5178816 (D.S.D. Nov. 8, 2021) (Viken, J.), the district court engaged in a well reasoned explanation why the non-retroactive change to the § 851 enhancement provision allows for re-sentencing of defendant, who received a mandatory life sentence due to the Government’s filing of the § 851 notice 38 days before trial, for a prior offense of possession of meth: “Mr. Olivares seeks First Step Act relief asserting he should no longer be classified as a career offender under 21 U.S.C. § 851 because his prior drug offense convictions should not be considered a “valid basis for enhancement purposes[.]” … Thirty-eight days before trial, the government filed an information pursuant to 21 U.S.C. § 851 (“851 Information”). (Docket 1058). The 851 Information alleged Mr. Olivares had two prior felony drug convictions. Id. Those alleged convictions were identified as:

(1) A judgment of conviction entered in District Court, Adams County, Colorado, on or about December 3, 2003, for a controlled substance conspiracy, Case No. 2003CR002076. Id.; see also Docket 1058-1 [“Adams County conviction”]; and

(2) An amended judgment of conviction entered in District Court, Arapahoe County, Colorado, on or about April 19, 2006, for possession of more than one gram of a Schedule II controlled substance, Case No. D0032004CR003021. See Dockets 1058 & 1058-2 [“Arapahoe County conviction”].

During the pretrial conference, the court found the government timely provided notice of its intent to seek an enhanced punishment pursuant to 21 U.S.C. § 851(a). … At the time of Mr. Olivares's convictions and sentencing, 21 U.S.C. § 841(b)(1)(A) provided “[i]f any person commits a violation under this subparagraph ... after two or more prior convictions for a felony drug offense10 have become final, such person shall be sentenced to a mandatory term of life imprisonment without release[.]” … First, defendant challenges the factual basis of his prior Colorado convictions as the controlled substance under C.R.S. § 18-18-405, morpholine, “is not included in the federal definition of controlled substances.” Asserting the Colorado statute is “overbroad,” Mr. Olivares argues his two prior Colorado convictions “were not qualifying 21 U.S.C. § 841 priors.” … Because the Johnson court found the Colorado drug statute was both overly broad and indivisible, Mr. Olivares submits the court held the “state drug conviction ‘cannot qualify as a predicate’ under the applicable federal definitions.” … Among the § 3553(a) factors, defendant points to the sentences received by his 15 co-defendants who receives sentences ranging from probation to incarceration of up to 120 months. … Mr. Olivares’ final argument is that the First Step Act reduced the mandatory life sentence to 25 years for a defendant with two or more prior serious drug felony convictions and reduced the 20-year mandatory sentence to 15 years for a defendant with one serious drug felony conviction. Id. at p. 12. For the same reason he is seeking a 15-year sentence in his first argument, Mr. Olivares submits because he has only one prior serious drug felony, 15 years is the mandatory minimum required under the First Step Act. … The government opposes Mr. Olivares’ § 404 motion. (Docket 1407 & 1430). The government argues defendant's claim for relief can only be brought through a 28 U.S.C. § 2255 petition. … Because of the nonretroactive nature of § 401 standing alone, Mr. Olivares argues his “only avenue for relief from a mandatory life sentence, which Congress itself has recognized as unjust and excessive, is the compassionate release process.” … The conclusion reached in McGee is adopted by numerous courts. “[D]efendants sentenced to life under the old version of § 841(b)(1)(A) may qualify for relief based on a gross disparity with the sentence they would face today.” … The court finds it has the independent authority to determine whether Mr. Olivares has shown “extraordinary and compelling reasons” to be granted a compassionate reduction in his sentence. 18 U.S.C. § 3582(c)(1)(A)(i). The purpose of the First Step Act was to expand the availability of relief based on judicial findings of extraordinary and compelling reasons. … As a result of the First Step Act, the Arapahoe County conviction does not qualify as a prior “serious drug offense.” 18 U.S.C. § 924(e)(2)(A)(ii). The Arapahoe County conviction was for the possession of methamphetamine and not for the possession with intent to distribute the controlled substance. (Docket 1058-2; see also Docket 1182 at p. 11 and Trial Exhibit 1B). Striking the Arapahoe County conviction from the 851 Information, Mr. Olivares faces a mandatory minimum of 15 years up to life imprisonment under 21 U.S.C. 841(b)(1)(A) and not a mandatory life sentence. As indicated at the time of Mr. Olivares’ sentencing, the court was very troubled by having to impose a statutory mandatory sentence of life imprisonment. Neither the crimes of conviction nor Mr. Olivares’ two prior felony drug offenses warranted a life sentence. … “[I]t is hard to argue that the unfairness of keeping a man in prison for decades more than if he had committed the same crime today is anything other than compelling.” Id. … The court believes when considering the sentencing disparity—which would result by not granting Mr. Olivares’ motion when compared to a defendant sentenced after the First Step Act with the same prior serious drug offense—that disparity constitutes an additional, extraordinary and compelling reason supporting a compassionate reduction in Mr. Olivares’ sentences. “Section 3582(c)(1)(A) provides a safety valve against what otherwise would be a harsh, unjust, and unfair result stemming from a non-retroactivity clause.” United States v. McPherson, 454 F. Supp. 3d 1049, 1053 (W.D. Wash. 2020). … Mr. Olivares faced mandatory life sentences only because the government chose to file the 851 Information. Neither of the prior convictions marked Mr. Olivares as a career drug distribution offender. Yet under § 851, these convictions triggered mandatory life sentences. This could not be the outcome in light of the justice-based changes Congress advanced through the First Step Act. The court grants Mr. Olivares’ motion for compassionate relief because it is supported by extraordinary and compelling reasons as well as the § 3553(a) factors. … Mr. Olivares has been in pretrial and BOP custody for more than 11 years. He is nearly 50 years old. The court presumes much has changed in his life since the preparation of the original PSR. The court will require the preparation of a new PSR which focuses on Mr. Olivares’ character, his danger to the public, his likelihood of recidivism, his need for rehabilitation, the guideline calculation had he been charged and convicted after the First Step Act was passed, and any other relevant considerations. The United States Marshals Service must immediately arrange for Mr. Olivares’ transportation to South Dakota so he can meet with his attorney and prepare for the re-sentencing hearing. Upon Mr. Olivares’ arrival in South Dakota the court will establish deadlines for completion of the new PSR and a date for re-sentencing.”



Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no new COVID-19 fatalities. Total inmate COVID-related deaths remain at 266. Ten of the inmate fatalities died while on home confinement. Staff deaths remain at 7.

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