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Fast Facts (Full BOP stats can be found here)

Confirmed active cases at 87 BOP facilities and 10 RRCs

Currently positive-testing inmates: 187 (up from 182) Currently positive-testing staff: 243 (down from 265) Recovered inmates currently in the BOP: 47,992 (down from 48,018) Recovered staff: 14,523 (up from 14,491)

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

Carswell FMC: 61 (down from 62)

Victorville Medium II FCI: 16 (down from 17)

SeaTac FDC: 11

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

Central Office HQ: 58 (unchanged)

Brooklyn MDC: 14 (unchanged)

Fairton FCI: 10

System-wide testing results: Presently, BOP has 144,842 federal inmates in BOP-managed institutions and 14,038 in community-based facilities. Today's stats: Completed tests: 128,664 (unchanged) Positive tests: 55,312 (unchanged)

Total vaccine doses administered: 338,480 (up from 337,990)

Case Note: Same motion same ruling? District courts must provide appellate court sufficient clarity regarding its reasons for rejecting compassionate release motion to permit meaningful appellate review...

In U.S. v. Handlon, No. 22-50075, 2022 WL 16955666 (5th Cir. Nov. 16, 2022) (published) (Higginson, J.), the court vacates and remands because district court’s denial of compassionate relief, which merely cites the “same reasons” it denied the previous motion, was insufficient for appellate review, which is particularly problematic because the defendant made a new argument, but the decision also provides that where a sentencing judge presides over a CR, and the Gov’t responds, it is OK to adopt the Gov’t’s reasoning, etc., explaining: "Robert Michael Handlon is serving a federal sentence of 240 months' imprisonment for conspiring to possess and distribute methamphetamine and hydrocodone. Since July 2020, Handlon has filed three motions for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). The district court rejected Handlon's first motion because he had failed to exhaust his administrative remedies, and denied Handlon's second motion on the merits on November 18, 2020. … In United States v. Shkambi, we clarified that § 1B1.13 does not bind district courts addressing prisoners' motions under § 3582. 993 F.3d at 393. After Shkambi, “our usual practice” has been to vacate and remand a district court's denial of a prisoner's motion where the court “did not have the benefit of Shkambi” and “mistakenly concluded that [§] 1B1.13 governed its analysis.” United States v. Jackson, 27 F.4th 1088, 1089 (5th Cir. 2022). Handlon's second compassionate-release motion was submitted and decided before Shkambi. Relevant here, Handlon asserted that the COVID-19 pandemic was an extraordinary and compelling reason for a sentence reduction, and explained that he had suffered “lung issues” as a result of a COVID-19 infection. … On November 18, 2020, the district court denied Handlon's motion. In its order, the district court noted that it had received Handlon's moving papers and the government's opposition. Then, the district court said, “[a]fter considering the applicable factors provided in 18 U.S.C. § 3553(a) and the applicable policy statements issued by the Sentencing Commission, the [c]ourt [denies] the [d]efendant's [m]otion on its merits.” The district court gave no further explanation. … On January 21, 2022, Handlon filed a third motion for compassionate release. While Handlon focused on rebutting the government's arguments about his potential danger to the public, he also explained that he had caught COVID-19 for a second time. Handlon also attached his request to BOP for compassionate release, which claims that he had suffered “lasting complications” from COVID-19 like “shortness of breath,” liver issues, and “memory weakness.” … The district court denied Handlon's January 2022 motion in a text order on the docket. The one-sentence decision explained that the motion was denied “for the same reasons stated in [the court's] [o]rder ... dated [November 18, 2020].” … It is an abuse of discretion for a district court to deny a motion for compassionate release without providing “specific factual reasons” for its decision. United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020). The amount of explanation required to meet this standard is context dependent. See Chavez-Meza v. United States, ––– U.S. ––––, 138 S. Ct. 1959, 1965, 201 L.Ed.2d 359 (2018) (discussing 18 U.S.C. § 3582(c)(2)); United States v. Pina, 846 F. App'x 268, 269 (5th Cir. 2021) (per curiam) (applying Chavez-Meza to a § 3582(c)(1)(A)(i) motion); United States v. Shorter, 850 F. App'x 327, 328 (5th Cir. 2021) (per curiam) (same). Sometimes, “it may be sufficient for purposes of appellate review that the judge simply relied upon the record, while making clear that he or she has considered the parties' arguments and taken account of the § 3553(a) factors, among others.” Chavez-Meza, 138 S. Ct. at 1965. In determining whether a district court sufficiently explained itself, we look to the entire record and the circumstances in which it was created. Where the judge deciding the compassionate-release motion is the same judge who sentenced the defendant, the record from the original sentencing may shed light on the judge's reasoning as to the compassionate-release motion. See, e.g., United States v. Sauseda, No. 21-50210, 2022 WL 989371, at *2 (5th Cir. Apr. 1, 2022) (per curiam). And where the government has opposed a prisoner's motion, it may be possible to tell that the district court's order adopted the government's analysis from its opposition brief. Applying those principles, our cases have reached inconsistent results. Take three cases involving orders drafted by the same judge who denied Handlon's motions. In United States v. Sauseda, the district court used the same language to deny Sauseda's motion as it did in denying Handlon's second motion: “After considering the applicable factors provided in 18 U.S.C. § 3553(a) and the applicable policy statements issued by the Sentencing Commission, the [c]ourt [denies] the [d]efendant's [m]otion[ ] on its merits.” 2022 WL 989371, at *1. Because “the [g]overnment did not object or otherwise file any response,” and because the “judge deciding the motion was not the judge who originally sentenced Sauseda,” we concluded that the record did not sufficiently illuminate the district court's reasoning to permit appellate review. Id. at *2. So we vacated the order and remanded. Id. at *3. United States v. Suttle went a step further in vacating an identically worded order even though the government had filed an opposition to the motion. No. 21-50576, 2022 WL 1421164, at *1, *1 n.6 (5th Cir. May 5, 2022) (per curiam). We decided that “the district court did not adopt the [g]overnment's reasoning, or otherwise indicate that the [g]overnment's arguments provided the ‘specific factual reasons’ for its decision.” Id. at *1 n.6. … Even assuming the order denying Handlon's second motion was “based in part on an independent assessment of the § 3553(a) factors, which the [g]overnment had argued as an additional basis for denying the motion,” White, 2022 WL 1699467, at *1, we cannot draw the same inference about the order denying Handlon's third motion. The government did not file an opposition to the third motion, so the district court did not have any reasoning to incorporate by reference in its order. That matters because Handlon's third motion presented new factual circumstances relating to the need to provide the defendant with “medical care ... in the most effective manner,” 18 U.S.C. § 3553(a)(2)(D), which the district court could not have considered before. Specifically, Handlon stated that he had caught COVID-19 a second time and included evidence that he had suffered serious complications as a result. Since the district court's original order did not explain how it balanced the § 3553(a) factors or its specific factual conclusions as to any of those factors, it is impossible to tell how the district court would have considered this new information. And the government's earlier opposition, which we assume for the sake of argument formed the basis for the district court's analysis, see White, 2022 WL 1699467, at *1, rested on an assumption that Handlon had “recovered from COVID-19.” As Handlon's motion asserts, this may no longer be true. Litigants sometimes pepper a district court with repetitive motions, and orders invoking “the same reasons stated” in an earlier ruling are an important docket-management tool. But a court cannot deny a second or subsequent motion for compassionate release “for the reasons stated” in a prior denial where the subsequent motion presents changed factual circumstances and it is not possible to discern from the earlier order what the district court thought about the relevant facts. As we explained, this is the case here. … Handlon's third compassionate-release motion may have little chance of success. But judges have an obligation to say enough that the public can be confident that cases are decided in a reasoned way. See Chavez-Meza, 138 S. Ct. at 1963-64 (discussing Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). Accordingly, we VACATE the district court's order denying Handlon's motion for compassionate release and REMAND for reconsideration consistent with this opinion.”

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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