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October 7, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 354 (down from 364) Currently positive-testing staff: 470 (up from 462) Recovered inmates: 43,043 (down from 43,108) Recovered staff: 7,863 (up from 7,860)


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

Three Rivers FCI: 46 (unchanged)

Beaumont USPI: 41 (unchanged)

Phoenix FCI: 34 (unchanged)

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

Oakdale I FCI: 27 (unchanged)

Phoenix FCI: 27 (unchanged)

Forrest City Low FCI 19 (up from 18)

System-wide testing results: Presently, BOP has 132,075 federal inmates in BOP-managed institutions and 14,592 in community-based facilities. Today's stats: Completed tests: 122,856 (up from 122,749) Positive tests: 42,936 (down from 43,013)


Total vaccine doses administered: 229,171 (unchanged)

Case Note: A court explains why Congress's failure to make § 924(c) amendment (forbidding enhanced consecutive sentences for two or more § 924(c) convictions at same proceeding) retroactive does not preclude consideration of compassionate release motion on that basis...


In U.S. v. CEDRIC J. SMITH, 2021 WL 4555257 (W.D. La. Oct. 5, 2021) (James, J.) (In granting a reduction based on 924(c) anti-stacking amendment’s lack of retroactivity, the court offers a persuasive explanation why Congress’ failure to make the change retroactive does not mean a court cannot consider it, explaining: "Further, the Court disagrees with the government's position that “[i]n passing the First Step Act, Congress expressly rejected the notion that defendants already serving sentences based on § 924(c)'s ‘stacked’ penalty provisions should benefit from the First Step Act's changes to the law.” [ECF No. 321 at 11-12]. Congress could have “expressly rejected” this notion by amending § 3582(c)(1)(A) to provide that any non-retroactive amendments to sentencing penalties cannot constitute “extraordinary and compelling reasons” for a sentence modifications, but it did not. However, the Court does agree that by declining to make the amendments to § 924(c) retroactive, Congress declined to relieve all defendants of lengthier sentences imposed under the prior interpretation of § 924(c)'s penalty provisions. Had Congress implemented a categorical approach and made the amendment retroactive, the convictions of an entire class of defendants sentenced prior to the First Step Act would have been vacated. There would have been no examination of whether any particular defendant posed a danger to the community, his or her history and characteristics, or any of the other individualized factors courts must consider for compassionate release. See 18 U.S.S.C. § 3582(c)(1)(A) (requiring courts to consider the 18 U.S.C. § 3553(a) factors). Yet, at the time Congress declined to make the amendments to 924(c) retroactive, it was aware the compassionate release statute mandates an individualized inquiry of the 3553(a) factors prior to granting compassionate release. Thus, the Court finds the fact that Congress did not give § 924(c) retroactive effect does not lead to the conclusion that Congress intended to prohibit courts from providing relief to some defendants on an individual basis. … Section 3582(c)(1)(A)(i) authorizes courts to reduce a sentence “in any case” presenting “extraordinary and compelling reasons” warranting a reduction—not any case “except those involving stacked sentences under § 924(c).” And because one of the original, expressed purposes of § 3582(c)(1) was to empower judges to reduce “unusually long sentence[s],” see n.6 supra, it would indeed be odd that Congress would then require courts to ignore its “clarification” that stacked § 924(c) sentences were not its original intent and to ignore its determination that such sentences are so unusually long that they are no longer to be mandatorily imposed. Putting Smith's sentence in context, as of this writing, Smith has served a little more than thirty years of the eighty-five year sentence imposed for his § 924(c) offenses. A defendant sentenced today for the same number of § 924(c) offenses as Smith could be released more than three decades before Smith. Thus, not only would such a defendant receive a sentence that was sixty years less than Smith, he would enter federal prison three decades after Smith and would be released three decades sooner. Such a disparity is extraordinary.”


Death Watch (Note: The BOP press website announcing BOP COVID-related deaths is located here.) The inmate death remains at 262. Ten of these inmates died while on home confinement. Staff deaths remain at 6.

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