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October 15, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 259 (down from 261) Currently positive-testing staff: 468 (up from 455) Recovered inmates: 42,972 (down 42,986) Recovered staff: 7,961 (up from 7,949)


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

Three Rivers FCI: 40 (unchanged)

Phoenix FCI: 33 (down from 34)

Terre Haute USP: 21

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 132,138 federal inmates in BOP-managed institutions and 14,625 in community-based facilities. Today's stats: Completed tests: 123,189 (up from 122,954) Positive tests: 42,780 (down from 42,795)


Total vaccine doses administered: 232,200 (down from 232,448)

Case Note: Compassionate release available even though defendant has not yet surrendered to designated institution...


In U.S. v. Ricardo Maxwell, 2021 WL 4776012 (S.D. Ohio Oct. 13, 2021) (Dlott, J.), the court granted compassionate release prior to the defendant's surrender to the designated institution, where defendant suffered a post-sentence stroke, explaining: "Defendant Ricardo Maxwell pled guilty, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), to one count of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. … Pursuant to the plea agreement, the Court sentenced Maxwell on March 12, 2020 to a 60-month term of imprisonment followed by 15 years of supervised release. … Maxwell served one week in pre-trial custody, from June 28 through July 5, 2017. He has been free on bond since July 5, 2017 without incident and has a self-surrender date of December 6, 2021. While out on bond, Maxwell suffered serious medical events, including an aortic dissection and a spinal cord stroke. Maxwell was originally due to self-surrender to the Bureau of Prisons (“BOP”) on May 14, 2020 (Doc. 257), but in light of his health conditions, the Court extended his current self-surrender date to December 6, 2021.[O]n July 21, 2021, Maxwell petitioned the warden of FMC Rochester for compassionate release. (Doc. 320-7.) The warden's office received Maxwell's petition on July 26, 2021 (Doc. 320-9), but has not provided a response. … As set forth below, the Court does not lightly grant compassionate release due to medical concerns, but this is a unique situation in which Maxwell's medical conditions rise to a rare and extraordinary level meriting his compassionate release. … The Government contends the Court cannot consider the merits of Maxwell's Motion because Maxwell is not in BOP custody, as his self-surrender date has been extended to December 6, 2021. (Doc. 321 at PageID 2779–80.) The Sixth Circuit has not yet addressed whether a court can adjudicate a compassionate release motion prior to the defendant being in BOP custody, and district courts that have addressed this issue have reached different conclusions. … The majority of district courts have read a custodial precursor into 18 U.S.C. § 3582(c)(1)(A)’s exhaustion requirement. … Other courts, however, have diverged and found that a court can consider a defendant's motion for compassionate release prior to the defendant being in physical BOP custody. See, e.g., United States v. Khachtryan, No. 15-cr-00234-CRB-16, 2021 WL 1110269, at *4 (N.D. Cal. Mar. 23, 2021) (“the [compassionate release] statute does not expressly or implicitly require movants to be in custody”); United States v. Hambrock, 520 F. Supp. 3d 827 (E.D. Va. Feb. 19, 2021); United States v. Hussain, No. 16-cr-00462-CRB-1, 2020 WL 5910065 (N.D. Cal. Oct. 6, 2020); United States v. Butler, No. 1:14-cr-00445-2 (N.D. Ill. Apr. 6, 2020) (Doc. 188) (granting compassionate release to defendant who had been assigned a BOP facility but had not yet reported to the institution). In Hambrock, the Government opposed the defendant's motion for compassionate release on the basis that the defendant was not in BOP custody at the time he filed his motion. 520 F. Supp. 3d at 830. The court rejected the Government's assertion and granted the defendant's motion. Although the defendant was not in custody, his prison facility had already been designated and he had filed his motion more than 30 days after sending a request for release to his warden. Id. at 829–31. The court reasoned that


[n]othing in the plain language of the statute requires the defendant to be in custody presently or to have served any portion of his sentence. [The defendant] has submitted a request to the warden of his facility. The request was denied. At least 30 days have passed. This is all that is required by the statute.

Id. at 830. Likewise, the court in Hussain found the exhaustion requirement satisfied where the defendant, prior to serving any portion of his sentence, was able to request the “ ‘warden of [his] facility’ move for relief on his behalf because his facility was designated when [he] was sentenced.” 2020 WL 5910065, at *3.

The Court finds the latter set of cases most persuasive and joins the other district courts that have found a defendant need not be in physical BOP custody to satisfy the exhaustion requirement. By its plain terms, the only procedural requirement contained in the statute is that a compassionate release motion is brought “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility.” 18 U.S.C. § 3582(c)(1)(A) (emphasis added). And “[i]f the language of the statute is clear, the court applies the statute as written.” Donovan v. FirstCredit, Inc., 983 F.3d 246, 253 (6th Cir. 2020). In this case, Maxwell has abided by the statute's plain language. The Court will not impose any further requirement not specifically provided for in the statute,3 in a similar fashion as the Court refrains from crafting any exceptions to the exhaustion requirement. See Alam, 960 F.3d at 834 (“Because ‘Congress sets the rules’ when it comes to statutory exhaustion requirements, the judiciary has a role to play in exception-crafting ‘only if Congress wants [it] to.’ ”) (quoting Blake, 136 S. Ct. at 1857) (alteration in original). The United States Marshal's Service informed the Court that Maxwell has been designated to FMC Rochester. (Doc. 319 at PageID 2363.) On July 21, 2021, Maxwell petitioned the warden at FMC Rochester for compassionate release based on his medical conditions. (Doc. 320-7.) The warden's office received Maxwell's request on July 26, 2021. (Docs. 320-8, 320-9.) More than 30 days have elapsed since Maxwell's request was received and prior to the filing of the instant Motion. Accordingly, the Court finds that Maxwell has satisfied the exhaustion requirement as written. … Although the Court knew of Maxwell's aortic dissection at the time of sentencing, it is clear that Maxwell's medical conditions have worsened significantly. … Additionally, after the Sentencing Hearing, in December 2020, Maxwell suffered a spinal cord infarction, or a “spinal cord stroke” (Doc. 320-1 at PageID 2529; Doc. 320-6 at PageID 2552), which has largely rendered him non-ambulatory. He cannot stand or sit for more than 10 to 15 minutes without experiencing extreme pain and numbness in his lower extremities, and he is unable to perform many basic activities of daily life such as cooking, bathing, or dressing. ) As indicated by his caregiver, Maxwell's medical conditions have rendered him “completely unable to care for himself.” … The Court finds that Maxwell has satisfied his burden of demonstrating extraordinary and compelling reasons for compassionate release. Maxwell's two life-altering medical events—an aortic dissection and spinal cord infarction—have left him with severe physical limitations. As a result, he is essentially confined to his home and, moreover, is incapable of caring for himself. He is physically unable to perform basic activities such as cooking, bathing, or dressing. The significant level of assistance Maxwell now requires due to his severe medical conditions demonstrates he would be unable to provide self-care in a correctional facility. … astly, the Court also considers the issue of sentencing disparities as this case involved five co-defendants, who were sentenced to terms of imprisonment ranging from 21 months to 120 months. While the Court acknowledges that granting Maxwell's Motion creates a disparity between Maxwell's sentence and that of his co-defendants given that Maxwell has yet to report to the BOP, this case presents the unique situation in which the disparity is warranted in light of Maxwell's serious and debilitating medical conditions described herein.”


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 have increased to 7.

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