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


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 84 BOP facilities and 10 RRCs

Currently positive-testing inmates: 182 (down from 202) Currently positive-testing staff: 265 (up from 261) Recovered inmates currently in the BOP: 48,018 (down from 48,102 ) Recovered staff: 14,491 (up from 14,485)


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

Carswell FMC: 62 (down from 69)

Victorville Medium II FCI: 17 (down from 22)

Oklahoma City FTC: 10


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

Central Office HQ: 58 (unchanged)

Rochester FMC: 28 (unchanged)

Brooklyn MDC: 14 (unchanged)

System-wide testing results: Presently, BOP has 144,770 federal inmates in BOP-managed institutions and 14,491 in community-based facilities. Today's stats: Completed tests: 128,664 (up from 128,663) Positive tests: 55,312 (up from 55,311)


Total vaccine doses administered: 337,990 (up from 337,368)


Case Note: Non-retroactive changes in safety valve eligibility couldn't help defendant even if court could consider them, as defendant would still not be eligible for saftey valve relief...


In U.S. v. JUWAN ALLEN, No. 16-20414, 2022 WL 16951638 (E.D. Mich. Nov. 15, 2022) (Lawson, J.), the court, canvassing the intra-circuit split within the Sixth Circuit regarding non-retroactive changes in law, finds even assuming it were allowed to find extraordinary and compelling circumstances, they wouldn’t exist here, explaining: "In United States v. McCall, 20 F.4th 1108 (6th Cir. 2021), reh'g en banc granted, 29 F.4th 816, 817 (6th Cir. 2022), the court of appeals clarified that “a court may consider a nonretroactive change in the law as one of several factors forming extraordinary and compelling circumstances qualifying for sentence reduction under 18 U.S.C. § 3582(c)(1)(A).” Id. at 1116. The court went so far as to say that a district court abuses its discretion when it fails to consider whether the combination of the COVID-19 pandemic, rehabilitation efforts, and a nonretroactive change in sentencing law constitute extraordinary and compelling circumstances warranting a prisoner's compassionate release. Ibid. We have observed on other occasions that the Sixth Circuit “has not traced a consistent path when dealing with” the impact of the non-retroactive sentencing reforms on compassionate release motions. United States v. Davenport, No. 91-81019, 2021 WL 3489707, at *2 (E.D. Mich. Aug. 9, 2021). In United States v. Owens, 996 F.3d 755, 763 (6th Cir. 2021), the court of appeals held that, “in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant's actual sentence and the sentence that he would receive if the First Step Act applied” (emphasis added). Shortly thereafter, different panels published conflicting opinions in United States v. Jarvis, 999 F.3d 442, 445 (6th Cir. 2021) and United States v. Hunter, 12 F.4th 555, 563 (6th Cir. 2021), which held that courts may not treat non-retroactive amendments in the First Step Act as extraordinary and compelling explanation for a sentence reduction. Instead, the Sixth Circuit held that non-retroactive amendments only may be considered when balancing the section 3553(a) factors upon a showing of “some other” extraordinary and compelling reason for a sentence reduction. Jarvis, 999 F.3d at 763. Considering this “intra-circuit split,” the McCall court explained that Owens controls. McCall, 20 F.4th at 1114. The court of appeals reasoned that, “[b]ecause Owens was published before Jarvis, Owens ‘remains controlling authority’ that binds future panels.” Ibid. (citing Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)). Thus, “[f]aced with the conflict between Owens and Jarvis, courts ‘must follow’ ... Owens” and consider non-retroactive changes in the law as one of several factors warranting compassionate release. Ibid. In a supplemental brief, the defendant argues that any confusion in the circuit law about whether non-retroactive statutory changes in sentencing provisions can constitute an “extraordinary and compelling” reason for a sentence reduction was dispelled by the Supreme Court's recent decision in Concepcion v. United States, 142 S. Ct. 2389 (2022), where the Court held that “the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act,” id. at 2404. Concepcion did not deal with the compassionate release statute, but its reasoning likely is broad enough to tip the scales in favor of the McCall faction over the Jarvis and Hunter faction. *5 Nonetheless, even with that gloss on the law, Allen has not shown that extraordinary and compelling circumstances exist that could justify a sentence reduction in this case. … Third, the defendant's argument that he would have been eligible for safety-valve relief if he was sentenced six months later is a non-starter. “[T]he safety-valve provision was enacted to prevent mandatory minimums from causing the least culpable offenders to receive the same sentences as their relatively more culpable counterparts.” United States v. Barron, 940 F.3d 903, 913 (6th Cir. 2019) (cleaned up). However, to secure safety-valve relief, the defendant “must show that he meets each and every criterion” of the statute. Id. at 914. Regardless of any modification of the criteria in 18 U.S.C. § 3553(f)(1), it is undisputed that both before and after revision the statute required the defendant to show that “the offense did not result in death or serious bodily injury to any person.” 18 U.S.C. § 3553(f)(3). He cannot do so here, where he was convicted of a drug crime resulting in death or serious bodily injury. Moreover, to qualify, the defendant must debrief fully with the government. § 3553(f)(5). Admitting the facts of the crime during the guilty plea hearing is not enough. United States v. O'Dell, 247 F.3d 655, 675 (6th Cir. 2001) (observing that “the safety valve provision not only requires a defendant to admit the conduct charged, but it also imposes an affirmative obligation on the defendant to ‘volunteer any information aside from the conduct comprising the elements of the offense’ ”) (citing United States v. Arrington, 73 F.3d 144, 149 (7th Cir.1996)). Judge Cohn pointed out at the sentencing hearing that because of concern for his safety, Allen would not cooperate with the government enough to persuade it to file a downward departure motion under U.S.S.G. § 5K.1.1. And the government in its brief recounted that death and injury followed cooperators in this very case. It is unlikely that Allen would ever “volunteer [the] information” necessary to qualify for the safety valve; suggesting otherwise is pure speculation, and unlikely speculation at that. Even if changes to the safety valve statute theoretically could establish extraordinary and compelling reasons under section 3582(c)(1)(A), Allen cannot show that this change would help him now.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) No new deaths within the BOP have been announced, leaving the reported inmate death toll at 309. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.



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