October 4, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG

Fast Facts (Full BOP stats can be found here)

Confirmed active cases at 91 BOP facilities and 10 RRCs

Currently positive-testing inmates: 233 (down from 316) Currently positive-testing staff: 403 (unchanged) Recovered inmates currently in the BOP: 48,930 (up from 48,875) Recovered staff: 14,162 (up from 14,148)

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

Yazoo City Medium FCI: 47 (down from 87)

Yazoo City Low FCI: 29 (up from 45)

Oakdale II FCI: 23 (down from 25)

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

Central Office HQ: 58 (unchanged)

Brooklyn MDC: 33 (unchanged)

Rochester FMC: 27 (up from 26)

System-wide testing results: Presently, BOP has 143,128 federal inmates in BOP-managed institutions and 13,942 in community-based facilities. Today's stats: Completed tests: 128,702 (unchanged) Positive tests: 55,350 (unchanged)

Total vaccine doses administered: 330,277 (up from 330,235)

Case Note: Intra-circuit split...

Whereas Judge McFadden in the case below held the court’s failure to consider the D.C. Circuit’s holding in Winstead that conspiracy offenses cannot serve as a predicate for a career offender enhancement cannot be an extraordinary and compelling circumstance supporting a grant of compassionate release, Judge Bates reached a different conclusion in U.S. v. Johnson, No. CR 02-310 (JDB), 2022 WL 2866722 (D.D.C. July 21, 2022) ("Nonretroactive changes in law, including the Winstead decision, can be relevant when deciding whether there are extraordinary and compelling reasons to reduce a defendant's sentence, and hence are relevant in this case.”). Thus, in U.S. v. CHRISTIAN DANIEL, Defendant., No. 1:17-CR-233-5 (TNM), 2022 WL 4547555 (D.D.C. Sept. 29, 2022) (McFadden, J.), the court explained, "Daniel argues that a “misapplication of the career offender provision” at his sentencing constitutes an “extraordinary and compelling” reason to reduce his sentence. See Mot. to Reduce Sentence 21. The Court designated Daniel a career offender under § 4B1.1(a) of the Guidelines, determining that Daniel's instant crime of conspiracy to distribute heroin was a “controlled substance offense” under the definition provided in 18 U.S.C. § 4B1.2(b). The year before, the D.C. Circuit held that inchoate drug offenses (like conspiracy) are not controlled-substance offenses under § 4B1.1(a). See United States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018). But because of “a serious omission by defense counsel,” Daniel's career-offender designation went unchallenged at sentencing. Mot. to Reduce Sentence 6. Daniel argues that this error, the harshness of prison COVID-19 lockdowns, and his desire to take care of his sick mother, warrant a sentence reduction under § 3582(c)(1)(A). Although courts have a sizable degree of discretion under § 3582(c)(1)(A), a motion for compassionate release is not the proper vehicle to litigate Daniel's Winstead claim. The “exclusive remedy” for a federal prisoner seeking to challenge the legality of his sentence is a motion under 28 U.S.C. § 2255(a). … The alleged impropriety of Daniel's sentence is not an “extraordinary and compelling” circumstance warranting a sentence reduction under § 3582(c)(1)(A)(i).”

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today the BOP identified no additional inmate fatalities and so the total number COVID-related inmate deaths remains at 308. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.