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October 25, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG



Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 88 BOP facilities and 9 RRCs

Currently positive-testing inmates: 171 (up from 170) Currently positive-testing staff: 347 (down from 365) Recovered inmates currently in the BOP: 48,480 (up from 48,478) Recovered staff: 14,299 (up from 14,272)


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

McKean FCI: 20 (up from 17)

Houston FCI: 19 (up from 18)

Phoenix FCI: 18 (up from 16)


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

Central Office HQ: 58 (unchanged)

Rochester FMC: 27 (unchanged)

Dublin FCI: 18 (down from 27)

System-wide testing results: Presently, BOP has 143,540 federal inmates in BOP-managed institutions and 13,944 in community-based facilities. Today's stats: Completed tests: 128,678 (up from 128,677) Positive tests: 55,326 (up from 55,325)


Total vaccine doses administered: 332,784 (up from 332,343)


Case Notes: Court reduces 480-month sentence to 240, citing § 924(c) stacking and rehab...


In U.S. v. Diaz-Castro, 2022 WL 10986177 (D.P.R. Oct. 19, 2022) (Arias-Marxuach, J.), the court, on remand, court agrees that non-retroactivity of 924(c) stacking combined with rehabilitation is extraordinary and compelling, a position bolstered by the sentencing judge’s dissatisfaction with the stacking scheme, explaining: "Recently, in United States v. Ruvalcaba, the First Circuit established two key holdings for the case at bar. First, it held that “district courts – when adjudicating prisoner-initiated motions for compassionate release - have discretion, unconstrained by any policy statement currently in effect, to consider whether prisoner's particular reasons are sufficiently extraordinary and compelling to warrant compassionate release.” Ruvalcaba, 26 F.4th at 23. … Second, the First Circuit found that Congress never “expressly prohibited district courts from considering non-retroactive changes in sentencing law[.]” Id. at 25. Thus, district courts have discretion to conduct “an individualized review of a defendant's circumstances and [effectuate] a sentence reduction ... based on any combination of factors (including unanticipated post-sentencing developments in the law).” Id. at 26 (citations omitted) (emphasis added) … The Government's primary objections, namely that § 1B1.13 of the Sentencing Guidelines is binding and that non-retroactive changes in sentencing law cannot warrant compassionate release, are no longer relevant in light of Ruvalcaba. (Docket No. 1286). Thus, this Court must review the record, the changes in the § 924(c) sentencing rules, and Díaz-Castro's particular circumstances to decide if Defendant has established extraordinary and compelling reasons for granting his Motion and whether the § 3553(a) factors warrant the requested sentence reduction. See United States v. Salinas-Acevedo, 2021 WL 5919786, at *2 (D.P.R. 2021).… As noted above, if sentenced for the same conduct today, Defendant would receive a mandatory cumulative sentence of 240 months (i.e., 10 years on the drug counts, and two 5-year sentences for the firearm related counts) as opposed to 480 months. At the sentencing hearing, the Court noted that while “based on 3553(a) factors, [480 months] may be a sentence that is beyond sufficient and greater than necessary[,]” the Court had a “Congressional mandate” to impose at least the statutory minimum. (Docket No. 979 at 35). Moreover, the sentencing Judge asserted that in this case, an approximately 17-year sentence would be “sufficient but not greater than necessary[.]” Id. at 52. Therefore, the total remaining term of incarceration would not only be disproportionate to “the seriousness of the offense and to what Congress now deems appropriate for this kind of conduct[,]” it would be more than double than what the sentencing judge considered sufficient in Díaz-Castro's particular case. McCoy, 981 F.3d at 279 (quotation omitted). Following his conviction, Díaz-Castro has made impressive efforts towards rehabilitation. He has taken advantage of numerous educational and vocational programs including parenting, drawing, business etiquette, and basic electrical skills. (Docket No. 1250-1). Defendant has contributed significantly towards the special monetary assessment imposed by the Court and his forfeiture obligations. (Docket No. 1250 at 23-24). While incarcerated, Defendant has had no disciplinary infractions and has served his community working as a cook. Id. at 23. Although the crimes are serious, nothing in the record indicates that the full 480-month sentence is required to provide just punishment, afford adequate deterrence to criminal conduct, protect the public from further crimes, or provide needed educational training. See 18 U.S.C. § 3553(a)(2). Instead, the record reflects that Defendant's current sentence was disproportionate even before the FSA eliminated § 924(c) stacking. Upon considering the totality of Díaz-Castro's particular circumstances coupled with the FSA's elimination of § 924(c) stacking, the Court finds that extraordinary and compelling circumstances are present and a sentence reduction under 18 U.S.C. § 3582(c) is warranted.”) (emphasis in original).


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) No new deaths within the BOP have been announced, leaving the reported inmate death toll at 309. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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