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October 26, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 152 (down from 160) Currently positive-testing staff: 416 (up from 413) Recovered inmates: 42,894 (up from 42,893) Recovered staff: 8,103 (up from 8,088)


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

Allenwood Low CI: 25 (up from 8)

Canaan UPS: 11

Forrest City Medium FCI: 10

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

Oakdale I FCI: 27 (unchanged)

Phoenix FCI: 27 (unchanged)

Forrest City Medium: 21 (up from 20)

System-wide testing results: Presently, BOP has 132,895 federal inmates in BOP-managed institutions and 14,547 in community-based facilities. Today's stats: Completed tests: 123,974 (up from 123,969) Positive tests: 42,606 (down from 42,613)


Total vaccine doses administered: 236,067 (unchanged)

Case Note: Court did not impermissibly give preclusive effect to Guidelines § 1B1.13 (policy statement)...


In U.S. v. ROMAN ENRIQUE DELGADO-MONTOYA, Defendant - Appellant., No. 20-2125, 2021 WL 4946825 (10th Cir. Oct. 25, 2021) (unpublished) (Eid, J.), where the defendant tethered his extraordinary and compelling argument to the § 1B1.13 policy statement, a court does not abuse its discretion in relying thereon where there is evidence lower court nonetheless understood it could vary from that Guideline, explaining: "Delgado-Montoya argued that his medical condition rendered him vulnerable to COVID-19 and thus qualified as an extraordinary and compelling reason, as defined by U.S.S.G. § 1B1.13(1)(A), permitting a sentence reduction through 18 U.S.C. § 3582(c)(1)(A). The district court denied the motion. Delgado-Montoya now appeals, arguing that the district court impermissibly bound itself to U.S.S.G. § 1B1.13(1)(A) when it concluded that he failed to demonstrate extraordinary and compelling reasons to justify a sentence reduction. Under 28 U.S.C. § 1291, we affirm the denial of the motion for sentence reduction because the district court did not limit itself to U.S.S.G. § 1B1.13(1)(A) in its decision and if any error did occur, it was harmless. …In this case, Delgado-Montoya “directly filed” a motion for sentence reduction and therefore, under Maumau, the district court's discretion to grant a sentence reduction is not restrained by the commentary to U.S.S.G. § 1B1.13. Delgado-Montoya argues that the district court erred by restraining its discretion to the policy statement's commentary in finding that Delgado-Montoya did not demonstrate extraordinary and compelling reasons for a reduction. Specifically, Delgado-Montoya points to the fact that, after describing the effects of the First Step Act, the court stated that “to find ‘extraordinary and compelling reasons’ for a sentence reduction based on a defendant's medical condition, the defendant must be” suffering from a medical condition as described in the policy statement. Aplt. App'x Vol. I at 275 (emphasis added). The district court's statement, however, must be read in context. Delgado-Montoya focused on the commentary to the Sentencing Commission's policy statement when he argued that his medical condition and resulting vulnerability to COVID-19 amounted to an extraordinary and compelling reason under § 1B1.13. For example, Delgado-Montoya argued that his susceptibility to severe illness or death because of the “proliferation of COVID-19 in prisons, combined with ... [his] age” caused him to “fall[ ] within the scope of ... the policy statement.” Aplt. App'x Vol. I at 42. It is thus entirely logical (and unsurprising) that the court would address Delgado-Montoya's argument with the commentary of § 1B1.13. Merely citing a guideline does not amount to an erroneous restraint of discretion. Moreover, the court articulated that “the Sentencing Guidelines are advisory” only. Aplt. App'x Vol. I at 276. In this way, the court recognized that the language of § 1B1.13 did not restrict its evaluation. This is further evidence that the district court did not erroneously restrict its discretion to the policy statement's commentary. Finally, the most important indication that the court did not erroneously constrain its discretion is the fact that it considered factors not listed in the commentary of the Sentencing Guidelines policy statement. For example, instead of checking Delgado-Montoya's health conditions against § 1B1.13(1)(A)’s exhaustive list of qualifying conditions (terminal illness, a “serious” condition, or age-related deterioration), the court considered the totality of evidence regarding Delgado-Montoya's health conditions, risk factors, and living situation. Specifically, the court indicated it might consider compassionate release for someone whose “underlying health conditions place him at high risk of infection and death from COVID-19,” a factor that is not mentioned in § 1B1.13(1)(A). … True, the district court's decision came after this court's decisions in McGee and Maumau, both of which held that, as noted above, district courts are not bound by the examples of extraordinary and compelling reasons enumerated in the § 1B1.13 commentary, and may determine whether such reasons are present based on the totality of a defendant's circumstances. However, the district court's decision, as demonstrated above, is entirely consistent with those decisions. By not constraining its discretion to the policy statement's commentary in this case, the district court followed the correct analysis as set forth in McGee and Maumau. In any event, if the court did commit an error, it was a harmless one.3 Even if the court had improperly constrained its discretion, the error would not have affected its decision. In other words, assuming the court incorrectly treated the enumerated categories in the policy statement's commentary as a limitation, it still would have denied the motion for sentence reduction, concluding that none of the facts in the record constituted extraordinary and compelling reasons to reduce Delgado-Montoya's sentence. For example, the policy statement's commentary contains a list of categories under which a defendant's medical condition could fall. If the court had constrained itself to the listed conditions, it would not have included Delgado-Montoya's condition within them. One such category, as particularly relevant here, is any “serious physical or medical condition ... that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.” U.S.S.G. § 1B1.13(1)(A). … In sum, we conclude that, even if the district court improperly constrained its discretion, it would have reached the same result. Reliance on the policy statement thus would not have had a “substantial influence” on the outcome or leave us in “grave doubt” as to whether it had such an effect. United States v. Cristerna-Gonzalez, 962 F.3d 1253,1267 (10th Cir. 2020) (citations omitted).”)


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Inmate COVID-related deaths remain at 265. Ten of the inmate fatalities died while on home confinement. Staff deaths remain at 7.

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