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October 13, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 89 BOP facilities and 9 RRCs

Currently positive-testing inmates: 187 (down from 270) Currently positive-testing staff: 393 (unchanged) Recovered inmates currently in the BOP: 48,666 (up from 48,692) Recovered staff: 14,206 (up from 14,203)


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

Yazoo City Medium FCI: 36 (down from 83)

Seagoville FCI: 20 (down from 21)

Allenwood Medium FCI: 17


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

Central Office HQ: 58 (unchanged)

Brooklyn MDC: 34 (unchanged)

Rochester FMC: 27 (unchanged)

System-wide testing results: Presently, BOP has 143,098 federal inmates in BOP-managed institutions and 14,108 in community-based facilities. Today's stats: Completed tests: 128,692 (unchanged) Positive tests: 55,340 (unchanged)


Total vaccine doses administered: 331,270 (up from 331,031)


Case Note: Because "there is nothing remotely extraordinary about statutes applying only prospectively" non-retroactive changes in law cannot support a grant of compassionate release...


In U.S. v. Jenkins, No. 21-3089, 2022 WL 6590453 (D.C. Cir. Oct. 11, 2022) (published) (Katsas, J.), the DC Circuit joins Third, Sixth, Seventh, and Eighth Circuits in holding non-retroactive changes in law cannot be extraordinary and compelling, explaining: "A district court may grant an inmate compassionate release only for “extraordinary and compelling reasons.” 18 U.S.C. § 3582(c)(1)(A). Typically, such reasons involve personal considerations such as the inmate's health, age, or family circumstances. Section 1B1.13 of the Sentencing Guidelines, which governs motions for compassionate release filed by the Bureau of Prisons, addresses when these considerations become sufficiently “extraordinary and compelling” to warrant compassionate release. … This case presents the question whether the district courts, in considering such motions, may nonetheless rely on section 1B1.13 and its commentary as persuasive authority. Following the view of nine sister circuits, we hold that they may. This case also presents the question whether certain intervening legal changes, occurring after the sentence at issue was imposed, can support compassionate release. One is a statute that only prospectively reduces penalties for the defendant's offense. Another is a judicial decision that retroactively establishes legal error at sentencing. A third is a judicial decision that, if rendered earlier, might have affected the negotiation of a plea bargain by reducing the defendant's exposure. We hold that none of these changes in sentencing law can support the grant of compassionate release. … At the time, Jenkins faced long mandatory minimum sentences on the various firearms charges. A section 924(c) offense carries a mandatory minimum sentence of five years’ imprisonment, which must run consecutively with any other sentence. 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii) (2018). And section 924(c)’s stacking provision set a mandatory minimum sentence for a second section 924(c) offense at 25 years, even if the defendant had not yet been convicted of the first offense at the time of the second. Id. § 924(c)(1)(C)(i) (2012). Additionally, the Armed Career Criminal Act (ACCA) imposes a 15-year mandatory minimum sentence for violating section 922(g) if the defendant has three prior convictions for a “violent felony” or “serious drug offense.” Id. § 924(e)(1) (2018). Jenkins had two prior convictions for attempted distribution of cocaine and one for assault with a dangerous weapon under D.C. law. At the time, all three convictions arguably qualified as predicate offenses to trigger ACCA. Jenkins thus faced the substantial possibility of a 45-year mandatory minimum sentence, with additional prison time for the two drug charges. Jenkins and the government entered a plea agreement. Jenkins agreed to plead guilty to one section 924(c) charge and one cocaine possession charge in exchange for dismissal of the remaining four charges. Given Jenkins’ prior convictions, the parties agreed that the career offender sentencing guideline, U.S.S.G. § 4B1.1(a), applied. That gave Jenkins a guideline range of about 22 to 27 years. Nonetheless, the parties agreed to recommend a prison term of eight to 12 years. The district court sentenced Jenkins to eight years. … Three relevant legal developments then took place. First, Congress prospectively narrowed section 924(c)’s stacking provision. Now, its enhanced minimum sentence applies only to offenses committed “after a prior conviction” under section 924(c). First Step Act § 403(a), 132 Stat. at 5221–22 (codified at 18 U.S.C. § 924(c)(1)(C)) (emphasis added). But the amendment applies only to defendants who had not yet been sentenced at the time of its enactment. Id. § 403(b), 132 Stat. at 5222. Had the change been in place when Jenkins was charged, he would have faced a 10-year rather than a 30-year minimum for the two section 924(c) charges. Second, United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018), held that attempted drug offenses do not trigger the career offender guideline. Id. at 1091. Without his prior convictions for attempted distribution, Jenkins would not have been considered a career offender, and his guideline range would have been seven to seven and a half years—well below the guideline range stipulated by the parties, and slightly below the sentence ultimately imposed. Third, Borden v. United States, ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021), held that offenses with a minimum mens rea of recklessness are not “crimes of violence” under ACCA. Id. at 1821–22 (plurality opinion); id. at 1835 (Thomas, J., concurring in the judgment). Under D.C. law, recklessness is enough to support a conviction for assault with a dangerous weapon. Frye v. United States, 926 A.2d 1085, 1097 (D.C. 2005). Without counting his conviction for that offense, Jenkins would not have faced a 15-year minimum sentence under ACCA. Jenkins filed a motion for compassionate release. He argued that the narrowed stacking provision, the commission of a Winstead error to trigger the career offender guideline, and the pre-Borden threat of a 15-year minimum sentence under ACCA were extraordinary and compelling circumstances warranting early release. … An “extraordinary” reason must be “ ‘most unusual,’ ‘far from common,’ and ‘having little or no precedent.’ ” United States v. Hunter, 12 F.4th 555, 562 (6th Cir. 2021) (quoting Webster's Third New International Dictionary: Unabridged 807 (1971)). And a “compelling” reason must be “both powerful and convincing.” United States v. Canales-Ramos, 19 F.4th 561, 567 (1st Cir. 2021) (citing Webster's Third, supra, at 462). Applying these requirements, we agree with the district court that Jenkins’ three asserted grounds are neither extraordinary nor compelling, whether considered in isolation or in combination with other factors. … We agree with the Third, Seventh, and Eighth Circuits. To begin, there is nothing remotely extraordinary about statutes applying only prospectively. In fact, there is a strong presumption against statutory retroactivity, which is “deeply rooted in our jurisprudence” and “embodies a legal doctrine older than our Republic.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The Ex Post Facto Clause compels the purely prospective application of criminal statutes that are unfavorable to defendants. U.S. Const. art. 1, § 9, cl. 3. And since 1871, federal law has codified the presumption against retroactivity for statutes making criminal law more favorable to defendants. Thus, a statute reducing the penalties for a criminal offense—or even repealing the offense entirely—does not apply to offenses committed prior to its enactment, “unless the repealing Act shall so expressly provide.” 1 U.S.C. § 109. … Separation-of-powers considerations reinforce this analysis. “It is the legislature, not the Court, which is to define a crime, and ordain its punishment.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820). When Congress enacted the original stacking provision, it deemed a 25-year minimum sentence to be appropriate for all second section 924(c) offenses. 18 U.S.C. § 924(c)(1)(C)(i) (2012). And by making its ameliorative amendment expressly nonretroactive, First Step Act § 403(b), 132 Stat. at 5222, Congress reaffirmed that the 25-year minimum remained appropriate for defendants already sentenced. We would usurp these quintessentially legislative judgments if we used compassionate release as a vehicle for applying the amendment retroactively, to previously sentenced defendants who would not otherwise qualify for compassionate release. … The Fourth Circuit would have courts consider two assertedly “distinct features” of cases involving defendants sentenced under the unamended stacking provision—the “sheer and unusual length” of the 25-year mandatory minimum and the “gross disparity” between that provision and the five-year mandatory minimum that would have applied had the amendment been made retroactive. See McCoy, 981 F.3d at 285–86. Likewise, the concurrence would have courts consider “a societal decision that the conduct for which the prisoner was convicted incurs less moral opprobrium than it previously had.” Post at ––––. Such reasoning always runs headlong into Congress's judgment that the unamended statute remains appropriate for previously sentenced defendants, which is why even courts on the McCoy side of the split recognize that a court may never grant compassionate release based solely on prospective sentencing changes. … But if those considerations do not themselves warrant compassionate release, we should not tip the balance by allowing courts to question whether the original mandatory minimum sentence was simply too long, either in absolute terms or relative to the amendment. … Our analysis is consistent with the Supreme Court's recent decision in Concepcion v. United States, ––– U.S. ––––, 142 S. Ct. 2389, 213 L.Ed.2d 731 (2022). That case involved section 404 of the First Step Act, which authorizes district courts to reduce sentences for certain offenses involving crack cocaine. The Supreme Court held that the district courts, in deciding whether to do so, may consider “intervening changes of law or fact.” Id. at 2404. The Court reasoned that a court may “consider any relevant materials” for sentencing, except as limited by statute or the Constitution. Id. at 2400. As explained above, the compassionate-release statute imposes just such a limit, in authorizing a reduced term of imprisonment only for extraordinary and compelling reasons. … Legal errors at sentencing are neither extraordinary nor compelling. When they occur, they may be corrected on direct review, including through the retroactive application of intervening judicial decisions. … The habeas-channeling rule of Preiser independently forecloses using compassionate release to correct sentencing errors. The writ of habeas corpus—including section 2255, the habeas substitute for federal prisoners—traditionally “has been accepted as the specific instrument to obtain release from [unlawful] confinement.” Preiser, 411 U.S. at 486, 93 S.Ct. 1827. As a result, an inmate may not rely on a generally worded statute to attack the lawfulness of his imprisonment, even if the terms of the statute literally apply. … Finally, we address the argument based on Borden, which establishes that Jenkins could not have received a 15-year mandatory minimum under ACCA for his felon-in-possession offenses. … To the extent Jenkins claims that his guilty plea was involuntary, he mounts a due process challenge to the conviction itself, see McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), which is subject to the habeas-channeling rule. The challenge is also foreclosed by Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), which held that a guilty plea does not become invalid simply because “later pronouncements of the courts ... hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.” Id. at 757, 90 S.Ct. 1463.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today the BOP identified no additional inmate fatalities and so the total number COVID-related inmate deaths remains at 308. Eleven of the inmates died while on home confinement. Staff deaths remain at 7

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