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October 21, 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 10 RRCs

Currently positive-testing inmates: 168 (up from 160) Currently positive-testing staff: 363 (down from 367) Recovered inmates currently in the BOP: 48,501 (down from 48,556) Recovered staff: 14,267 (up from 14,262)


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

Houston FCI: 18 (unchanged)

McKean FCI: 17 (up from 16)

Phoenix FCI: 16 (unchanged)


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

Central Office HQ: 58 (unchanged)

Rochester FMC: 27 (unchanged)

Fairton FCI: 27 (unchanged)

System-wide testing results: Presently, BOP has 143,470 federal inmates in BOP-managed institutions and 14,138 in community-based facilities. Today's stats: Completed tests: 128,688 (unchanged) Positive tests: 55,336 (unchanged)


Total vaccine doses administered: 332,363 (up from 331,149)


Case Notes:


In U.S. v. RAUL AMEZCUA, Defendant., No. 1:93-CR-05046-DAD-1, 2022 WL 7693153 (E.D. Cal. Oct. 13, 2022) (Drozd, J.), the court agreed that with lifer's argument that non-retroactivity of Booker was extraordinary and compelling, supporting compassionate release, explaining: "On September 21, 1993, the jury trial in this case commenced. (Doc. No. 128.) At that trial, the jury heard testimony that defendant Amezcua conspired with his co-defendants to manufacture and distribute methamphetamine in Tulare, Fresno, and San Diego counties in the early 1990s and that he orchestrated a large methamphetamine trafficking operation, including by directing his co-defendants in the manufacture of methamphetamine at two laboratories located in hotel rooms and chicken coop sheds that defendant Amezcua had rented in Visalia and Woodlake, California. … On October 7, 1993, following a twelve-day trial, the jury found defendant Amezcua guilty on all counts. (Doc. Nos. 145, 147.) Following his conviction, it was determined that under the U.S. Sentencing Guidelines, defendant Amezcua's total offense level was 46 and his criminal history category was III, resulting in a sentencing guideline range calling for a sentence of life imprisonment. (PSR at 9–12, 15–16.) On November 21, 1994, the sentencing judge adopted the PSR's recommendation and sentenced defendant to life imprisonment as to counts one, two, and three, with those terms to be served concurrently, followed by a 60-month term of supervised release, and imposed the mandatory $150 special assessments. … Defendant is currently in the custody of the U.S. Bureau of Prisons (“BOP”) and serving his life sentence at United States Penitentiary, Victorville (“USP Victorville”). … As the Supreme Court has recently held, “[i]t is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court's discretion to consider information is restrained.” Concepcion v. United States, __ U.S. __, 142 S. Ct. 2389, 2396 (2022). … Defendant Amezcua urges this court to now find that “other reasons” warranting his compassionate release exist based on the fact that he “would not be sentenced to a term of life imprisonment were he to be sentenced today under contemporary standards.” (Doc. No. 556 at 2.) Defendant emphasizes that District Judge Myron D. Crocker sentenced him “under the mandatory pre-Booker regime to life imprisonment,” and “[n]othing in the record of this case suggests Judge Crocker would have imposed a life term had such a sentence not been mandatory.” (Id.) Defendant Amezcua also points to the undersigned's recent decision in United States v. Favela, No. 1:94-cr-05044-DAD, granting compassionate release on the basis of “other reasons,” and contends that he is “similarly situated in all material respects to the defendant in Favela.” … Having considered the parties’ arguments, the court is not persuaded by the government's attempts to distinguish this case from the circumstances that compelled the granting of compassionate release in Favela. Notably, the government does not challenge any of the analysis in the Favela decision or the authority cited therein, including the district court's decision in United States v. Parker, 461 F. Supp. 3d 966 (C.D. Cal. 2020), which the undersigned has found to be particularly instructive. The district court in Parker found extraordinary and compelling reasons existed in that case to reduce defendant Parker's life sentence to “time served, followed by five years of supervised release” in part because his life sentence was imposed under a sentencing regime that is no longer valid post-Booker. 461 F. Supp. 3d at 985–86. … Here, defendant Amezcua was sentenced to life imprisonment solely because the sentencing guidelines were considered mandatory in 1994; the sentencing court lacked discretion to impose any other sentence absent a recognized ground for departure from the then mandatory guidelines. The undersigned further agrees that like the defendants in Parker and Favela, defendant Amezcua “is currently serving life in prison, pursuant to a judgment rendered under a sentencing regime that is no longer in effect and has since been declared unconstitutional.” Id. The court recognizes that the Sentencing Guideline range applicable to defendant Amezcua has not been altered by the Supreme Court's decision in Booker. That is, even if defendant Amezcua were to be sentenced today, his total offense level would still be 46—effectively 4310—and the applicable advisory sentencing guideline range would still be “life.” But, importantly, imposition of a life sentence would no longer be mandated because the Sentencing Guidelines are no longer mandatory but are instead merely advisory. See United States v. Booker, 543 U.S. 220 (2005) (declaring the Guidelines advisory). Indeed, nothing in the record before the court affirmatively suggests that the sentencing judge in this case would have imposed a life term of imprisonment had such a sentence not then been mandatory. The court is not persuaded by the government's suggestion that the record's silence in this regard should be interpreted as a sign of the inverse: that the sentencing judge would have imposed a life term of imprisonment even if the guidelines had been advisory at that time. … Given the court's experience in this regard, and despite the fact that his applicable guideline range is still “life,” the court agrees with defendant Amezcua that he would not be sentenced to a term of life imprisonment if he were to be sentenced today under contemporary standards. As noted above, supra n.6, defendant Amezcua has already effectively served a term of approximately 408 months (just over 34 years) in federal prison, which is well above the low end of the “360 months to life” guideline range for the total offense level of 42—one offense level below defendant's effective offense level of 43. Under these circumstances, the court finds that defendant Amezcua has satisfied his burden of demonstrating the presence of “other reasons” establishing the existence of extraordinary and compelling circumstances warranting a reduction in his life sentence."

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today, the BOP acknowledged the death of FMC Devens inmate Marco Vargas, 48, on October 2, 2022, raising the reported inmate death toll to 309. Eleven of the inmates died while on home confinement. Staff deaths remain at 7

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