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Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 124 (up from 123) Currently positive-testing staff: 258 (down from 260) Recovered inmates: 42,144 (down from 42,185) Recovered staff: 8,470 (up from 8461)

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

McKean FCI: 23 (unchanged)

Waseca FCI: 14

Hazelton FCI: 10 (up from 6)

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

Florence ADMAX USP: 17 (unchanged)

Carswell FMC: 13 (unchanged)

McKean FCI: 13 (unchanged)

System-wide testing results: Presently, BOP has 134,180 federal inmates in BOP-managed institutions and 14,779 in community-based facilities. Today's stats: Completed tests: 125,901 (down from 125,910) Positive tests: 41,858 (down from 41,897)

Total vaccine doses administered: 256,993 (up from 256,821)

Case Note: If at first you don't succeed....

In U.S. v. XAVIER ECCLESTON, Defendant., No. CR PJM 11-0567, 2021 WL 5506754 (D. Md. Nov. 24, 2021), the court denied defendant's first compassionate release motion grounded in COVID-19 concerns, but granted his renewed motion a year later, after he served 120 months of a 188-month sentence, based on the disparate treatment of codefendants, explaining: "A sentencing disparity may, in limited circumstances, constitute an extraordinary and compelling reason to reduce a sentence and grant compassionate release....

As stated supra, Eccleston was originally sentenced to 210 months of incarceration, later reduced to 188 months based on changes in the sentencing regime. ECF No. 556. Of the co-defendants in this case, only one person received a higher sentence: Whitehurst, the leader of the conspiracy, who was sentenced to 294 months. ECF No. 582. In contrast, the other co-defendants all received sentences of 120 months or less and several received sentences under 80 months. At this point, only Eccleston and Whitehurst remain in prison. ECF No. 582...

Eccleston acknowledges that some degree of disparity may be justified given that the other defendants who received lower sentences pleaded guilty, while he opted for a jury trial. ECF No. 582. Even so, he asserts, considering their early acceptance of responsibility, and even in view of his own obstruction of justice enhancement, the extent of disparity in this case is not justified. See e.g., United States v. Sappleton, PJM-01-284, 2021 WL 598232, at * 1, *3 (D. Md. Feb. 16, 2021) (finding extraordinary and compelling circumstances based on sentencing disparity even where the conspiracy leader cooperated and pled guilty). Eccleston argues that his sentence does not proportionally reflect the fact that he was “among the least culpable defendants.” ECF No. 582. He highlights co-defendants such as John Holt, a “lieutenant” of the conspiracy, who was sentenced to 120 months; Raymond Haynesworth, who had a managerial role and was sentenced to 72 months, later reduced to 70 months; and Jason Scrivner, who received a firearm enhancement and was sentenced to 78 months, later reduced to 70 months. ECF No. 582.

Indeed, it appears that the potential for a sentencing disparity among the many defendants was anticipated at sentencing. As Eccleston points out, Judge Williams expressed concern about whether Eccleston's sentence would be proportionate, stating “The only issue I would ask is with reference to avoiding the disparity of sentencing, where does this defendant fit in the scheme of others?” ECF No. 582, quoting T.1/30/13, 34. In response, the prosecutor stated “we think in terms of people coming down the pike... their sentences .... will be higher than this.” Id. at 35. This not only did not turn out to be the case; only Whitehurst received a higher sentence than Eccleston. Indeed, in his Motion, Eccleston has attached a letter from retired Judge Williams, in which he stated: “Given Mr. Eccleston's periodic role in the conspiracy, this may be at odds with my stated desire to avoid sentencing disparity in this case.” ECF No. 582-1.

Though sentencing is an individualized assessment, courts must also consider the need to avoid unwarranted sentencing disparities among similarly situated defendants....

In this case, Eccleston's co-defendants received vastly lower sentences than he did – despite the prosecutor's representations and Judge Williams’ concern over sentencing proportionality. The resulting sentencing spread demonstrates that Eccleston's disparate sentence, in context, is unwarranted. See Payton, PJM 06-341, 2021 WL 927631, at *2; Edwards, PJM-05-cr-179, 2021 WL 1575276, at *3; United States v. Stockton, ELH-00-352, 2021 WL 1060347, at *14 (D. Md. Mar. 17, 2021) (considering sentence reduction of defendant's more culpable brother as a factor that supports reducing defendant's sentence to time served).

Moreover, while Eccleston does not make the argument that he would receive a lower sentence today, data from the 2020 Sentencing Commission Sourcebook show that the mean sentence imposed for drug trafficking was 76 months,3 substantially lower than the 180 months Eccleston received for his drug charges.

Let it be clear: Eccleston committed serious, albeit non-violent, drug offenses. His role in the drug trafficking operation, however, was relatively minor. The disparity between his 188-month sentence and the sentences of his co-defendants is striking, and particularly concerning given the Government's representation at sentencing before Judge Williams that comparatively higher sentences were expected for other more culpable defendants. See Sappleton, PJM-01-284, 2021 WL 598232, at *3 (noting defendant was not a leader in drug trafficking ring yet he had served more time than the leader of the ring). Compare United States v. Morales-Vega, PJM 08-0051, 2021 WL 4864450 at *5 (Oct. 19, 2021) (no extraordinary and compelling circumstances due to 50+ month sentencing disparity between petitioner and co-defendants where co-defendants benefited from early acceptance and were minor players in drug conspiracy compared to petitioner, who had a manager role and possessed a weapon). In sum, the sentencing disparity in this case is extraordinary and compelling."

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no new COVID-19 fatality. Total inmate COVID-related deaths remain at 267. Ten of the inmate fatalities died while on home confinement. Staff deaths remain at 7.

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