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November 17, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 118 (down from 123) Currently positive-testing staff: 259 (unchanged) Recovered inmates: 42,369 (down from 42,411) Recovered staff: 8,410 (up from 8,400)


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

Terre Haute FCI: 29 (unchanged)

McKean FCI: 10

Forrest City Medium FCI: 9 (unchanged)

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

Florence ADMAX USP: 17 (up from 15)

Central Office HQ: 16 (unchanged)

Carswell FMC: 13 (unchanged)

System-wide testing results: Presently, BOP has 133,717 federal inmates in BOP-managed institutions and 14,771 in community-based facilities. Today's stats: Completed tests: 125,279 (up from 125,197) Positive tests: 42,069 (down from 42,115)


Total vaccine doses administered: 250,713 (up from 248,907)

Case Note: Defendant's sentence reduced by 60 months, with Government assist, due to error at original sentencing...


In U.S. v. JAMES GILLEY, 2021 WL 5296909 (W.D.N.Y. Nov. 15, 2021) (Siragusa, J.), the government suggested that the court treat defendant's application under Section 404 of the First Step Act as a compassionate release motion and reduce his sentence by 60 months because Probation’s analysis at sentencing was flawed; the court explained: "Briefly, following a jury trial Defendant was convicted of Counts 1-4 of Superseding Indictment charging him with Conspiracy to Possess with Intent to Distribute, and to Distribute Marijuana and Cocaine Base in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(C), 846 and 851; Possession with Intent to Distribute Cocaine Base in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(C) and 851; Possession with Intent to Distribute Marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 851; and Possession of a Firearm in Furtherance of a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1). Notably, Defendant committed those offenses only a few days after being placed on supervised release following a 110-month prison sentence for a prior conviction in this Court. … On March 20, 2006, the Court sentenced Defendant as a career offender1 principally to a term of imprisonment of 420 months (35 years). With regard to that sentence, the Government had filed a Section 851 Information, concerning Counts 1, 2 and/or 3 of the Indictment, indicating that Defendant had a prior drug felony offense in this Court. Because of that prior drug felony conviction, the statutory maximum prison sentences for Counts 1 and 2 increased from 20 years to 30 years, and the maximum sentence for Count 3 increased from 5 years to 10 years. … The Court imposed a sentence of imprisonment of 360 months on Count 1 and Count 2 to be served concurrently, 120 months on Count 3 to be served concurrently with the sentences on Counts 1 and 2, and 60 months on Count 4 to be served consecutively to the sentences on Counts 1-3. … The Court arrived at the imprisonment portion of the sentence after finding that Defendant's sentencing range under the advisory Guidelines for Counts 1-3 was 360 months to Life, with a required additional consecutive sentence of 60 months on Count 4. In other words, the Court understood that the minimum total guideline sentence was 420 months, and it imposed that sentence. However, in connection with Defendant's instant motion, U.S. Probation and Pretrial Services (“Probation”) prepared an Abbreviated Supplemental Presentence Report (“ASPR”) indicating that the Court's understanding at sentencing had been incorrect, and that Defendant's minimum total guideline sentence had actually been 360 months, not 420 months. On this point, Probation explained the miscalculation as follows:

At the original sentencing, the Court was incorrectly advised that Gilley was subject to 360 months to life on Counts 1, 2 and 3, and an additional 60 months on Count 4 to run consecutively to Counts 1, 2 and 3. The correct guideline range for Counts 1-4 is 360 months to life. After determining the total punishment, the sentence should be apportioned among all counts of conviction[.]

*** In sum, the error consisted of the fact that at sentencing the Court understood Defendant's sentencing guideline range under the advisory Guidelines to be 360-months-to-life on Counts 1-3, plus sixty months consecutive on Count 4 to be added onto whatever sentence the Court imposed with regard to Counts 1-3, when the guideline range was actually 360 months to life on all four counts, to be apportioned between Counts 1-3 and Count 4. … With regard to the sentence calculation error identified by Probation, the Government suggests that the Court treat Defendant's application as seeking “compassionate release” under 18 U.S.C. § 3582(c)(1)(A) and reduce Defendant's sentence to the correct minimum guideline sentence of 360 months, a reduction of 60 months. … Having considered these principles, the Court liberally construes Defendant's application as alternatively seeking compassionate release under § 3582(c)(1)(A) and finds that the guideline sentencing calculation error described above is an extraordinary and compelling reason to reduce Defendant's sentence by sixty months. … Accordingly, pursuant to the calculations in the ASPR, Defendant's overall sentence of imprisonment is reduced from 420 months to 360 months[.]”)



Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified one new COVID-19 fatality. Total inmate COVID-related deaths have increased to 267. Ten of the inmate fatalities died while on home confinement. Staff deaths remain at 7.

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