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October 13, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 274 (down from 317) Currently positive-testing staff: 470 (down from 474) Recovered inmates: 43,101 (up 43,034) Recovered staff: 7,926 (up from 7,892)


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

Three Rivers FCI: 42 (down from 44)

Phoenix FCI: 34 (unchanged)

Beaumont USPI: 29 (down from 35)

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

Oakdale I FCI: 27 (unchanged)

Phoenix FCI: 27 (unchanged)

Forrest City Low FCI 19 (unchanged)

System-wide testing results: Presently, BOP has 132,238 federal inmates in BOP-managed institutions and 14,457 in community-based facilities. Today's stats: Completed tests: 123,100 (up from 123,066) Positive tests: 42,922 (up from 42,939)


Total vaccine doses administered: 231,362 (unchanged)

Case Note: Eight Circuit weighs in on relevance of USSG § 1B1.13 to compassionate release applications...


In U.S. v. Marcussen, 2021 WL 4597778 (8th Cir. Oct. 7, 2021) (published) (Loken, J.), the Eighth Circuit weighed in on whether USSG § 1B1.13 is binding on judicial determinations of compassionate release applications, and it finds … it is not, though it isn’t irrelevant either, explaining: "Marcussen criticizes the district court for basing its decision on the fact that his serious heath conditions are well-controlled and he is able to care for himself in the prison environment, a factor specifically recognized in Application Note 1(A)(ii) to USSG § 1B1.13. Marcussen argues this commentary should not be a limiting factor because it has not been revised since the First Step Act authorized inmates to seek reductions directly. This assertion has found favor with some courts. See, e.g., United States v. Brooker, 976 F.3d 228 (2d Cir. 2020). We did not take a position on the debate in United States v. Rodd, 966 F.3d 740, 747 (8th Cir. 2020), because “[t]he district court knew its discretion,” nor in Gater, 857 Fed.Appx. at 261, because “the First Step Act in 2018 did not change the discretion afforded the district court.” So long as a district court does not explicitly limit its discretion to the factors identified in USSG § 1B1.13 and its commentary, it is appropriate for this court to ignore what is, in substance, no more than an academic debate. First, § 3582(c)(1)(A)(i) specifically requires a court in exercising its discretion to determine that a reduction “is consistent with applicable policy statements issued by the Sentencing Commission.” Therefore, § 1B1.13 and its commentary may not be ignored. Second, the Commission has explicitly labeled § 1B1.13 a Policy Statement. A guidelines policy statement is important advisory guidance, but it is binding only if it “prohibits a district court from taking a specified action.” Williams v. United States, 503 U.S. 193, 201, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992); see United States v. Smith, 282 F.3d 1045, 1047 (8th Cir. 2002). The commentary relevant to determining whether Marcussen's medical conditions are extraordinary and compelling reasons for a sentence reduction, USSG § 1B1.13, comment. (n.1(A)(ii)), is advisory not prohibitive. Thus, the district court properly looked to this commentary as relevant but not binding in determining that Marcussen's health conditions at the time he requested a § 3582(c)(1)(A)(i) sentence reduction were not “extraordinary and compelling reasons” warranting a reduction. The First Step Act required no more. See Rodd, 966 F.3d at 747.”)



Death Watch (Note: The BOP press website announcing BOP COVID-related deaths is located here.) The inmate death remains at 262. Ten of these inmates died while on home confinement. Staff deaths remain at 6.

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