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October 28, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 164 (up from 152) Currently positive-testing staff: 367 (down from 489) Recovered inmates: 42,803 (down from 42,845) Recovered staff: 8,163 (up from 8,136)


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

Allenwood Low CI: 24 (down from 25)

Canaan UPS: 14 (up from 11)

Forrest City Medium FCI: 12 (up from 10)

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

Oakdale I FCI: 27 (unchanged)

Phoenix FCI: 27 (unchanged)

Forrest City Medium: 21 (unchanged)

System-wide testing results: Presently, BOP has 132,967 federal inmates in BOP-managed institutions and 14,715 in community-based facilities. Today's stats: Completed tests: 124,165 (up from 123,976) Positive tests: 42,532 (down from 42,608)


Total vaccine doses administered: 238,306 (up from 237,257)

Case Note: Defendant need not file administrative appeal before seeking compassionate release in district court, where BOP denies compassionate release within 30 days ...


In U.S. v. Muhammad, No. 20-7520, 2021 WL 4888393 (4th Cir. Oct. 20, 2021) (published) (Thacker, J.), the court found that, even where BOP denies defendant's application for compassionate release within 30 days, exhaustion is satisfied and defendant need not exhaust administrative appeals, explaining: "Appellant filed his motion for a sentence reduction 149 days after asking the warden of Federal Correctional Institution (“FCI”) Loretto, the facility where he is imprisoned, to file the motion on his behalf and 132 days after the warden denied his request to do so. The district court held that because the warden responded to Appellant's request within 30 days, pursuant to § 3582(c)(1)(A), Appellant had to exhaust his administrative remedies before he could file a motion on his own behalf. But Appellant did not appeal the warden's denial through the Bureau of Prison's administrative remedy program and thus did not exhaust his administrative remedies. Therefore, the district court denied Appellant's motion without reaching the merits. … On October 13, 2020, Appellant timely appealed, asking this court to reverse the decision of the district court and remand with instructions to resolve the motion on its merits. The government agrees with Appellant that remand is appropriate. … We conclude, as have many of our sister circuits, that the statute's requirement that a defendant satisfy the threshold requirement before filing a motion in the district court is a non-jurisdictional claim-processing rule. … Turning to the second issue, whether or not Appellant satisfied the threshold requirement in § 3582(c)(1)(A), we conclude that he did. According to the statute's plain text, once a defendant completes the initial step of requesting that the Bureau of Prisons bring a motion on their behalf, the defendant may file a motion with the court after (1) “fully exhaust[ing] all administrative rights to appeal ... or” (2) after “the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier ....” § 3582(c)(1)(A) (emphasis supplied). The words “or” and “whichever” make it unambiguously clear that Congress has provided defendants with two alternative ways to satisfy the threshold requirement. … Therefore, we readily conclude that the threshold requirement in § 3582(c)(1)(A) is non-jurisdictional and satisfied if a defendant requests the Bureau of Prisons to bring a motion on their behalf and either fully exhausts all administrative rights to appeal the Bureau's decision or waits 30 days from the date of their initial request to file a motion in the district court. Appellant has satisfied that requirement here. He did not exhaust his administrative remedies, but he did file his motion 149 days after asking the FCI Loretto warden to file the motion on his behalf. Therefore, the district court erred in sua sponte dismissing the motion. For the foregoing reasons, the district court's dismissal of Appellant's § 3582(c)(1)(A) motion is vacated, and we remand for consideration of the merits.”

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Total inmate COVID-related deaths remain at 266. Ten of the inmate fatalities died while on home confinement. Staff deaths remain at 7.

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