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September 10, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Quick Facts: Currently positive-testing inmates: 566 (up from 486) Currently positive-testing staff: 562 (up from 526) Recovered inmates: 42,862 (down from 42,873) Recovered staff: 7,360 (up from 7,353)


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

Coleman Low FCI: 81 (up from 74)

San Diego MCC: 64 (unchanged)

Herlong FCI: 56

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

Pollock USP: 40 (unchanged)

Oakdale I FCI: 25 (unchanged)

Beaumont USP: 22 (unchanged)

System-wide testing results: Presently, BOP has 130,010 federal inmates in BOP-managed institutions and 14,486 in community-based facilities. Today's stats: Completed tests: 120,834 (down from 120,837) Positive tests: 42,872 (down from 42,875)

Total vaccine doses administered: 220,592

Case Note: Compassionate release granted to defendant sentenced to life upon prior felony information that would no longer support mandatory life sentence...


In U.S. v. ROBERT DALE GRAY, 2021 WL 4096030 (W.D. Mo. Sept. 8, 2021) (Harpool, J.), the court released a lifer who would no longer be considered a career offender following changes to § 851, explaining: "On November 19, 1996, the Government filed an information pursuant to 21 U.S.C. § 851, alleging Gray had two prior felony drug convictions, enhancing the penalties under 21 U.S.C. § 841(b)(1)(A). … On December 19, 1997, during Gray's sentencing for conspiracy to distribute, the Court determined that Gray's prior convictions for felony sale of methamphetamine on July 26 and July 27, 1989, qualified as separate offenses under 21 U.S.C. § 841(b)(1)(A). The convictions were charged in the same instrument and resulted from the same arrest. These prior convictions included two offenses only 48 hours apart: two counts of felony sale of methamphetamine on July 26, 1989 and July 27, 1989 as well as one count of possession of methamphetamine on July 27, 1989. These prior offenses were for the sale and possession of a total of less than two grams of methamphetamine. … Because Gray had two prior felony drug convictions which, at that time, counted as separate offenses, he was subject to a mandatory life sentence without parole under 21 U.S.C. § 841(b)(1)(A). Id. On September 22, 1997, this Court sentenced Gray to a term of life imprisonment, to be followed by ten years' supervised release. (Doc. 103). The Court noted that it was “bound by the statutes passed by Congress and also bound by the guidelines. And whether the sentence called for under the statute is excessive, the Court has very little discretion, if any, in departing from the statute.” Transcript of September 19, 1997 Sentencing 20:15-19. … The First Step Act of 2018 has since abolished mandatory life sentences for drug offenders that have two or more qualifying drug offenses. See First Step Act of 2018, Pub. L. No. 115-391, § 401, 132 Stat. 5194, 5220–21. Further, Amendment 709 has clarified that prior offenses charged in the same instrument and without an intervening arrest, such as Gray's two underlying convictions for felony sale of methamphetamine on July 26 and July 27, 1989, are no longer considered separate offenses under the sentencing guidelines. … Gray has significant health concerns. He is sixty-nine years old and suffers from type 2 diabetes, hypertension, and cirrhosis of the liver and has a history of Hepatitis C. Given the COVID-19 pandemic—and the fact that Gray has previously contracted the virus—it is unclear what long-term effects he may encounter or whether he would be able to survive contracting COVID-19 a second time. … Even if the COVID-19 pandemic, along with Gray's age and medical conditions, is not in and of itself extraordinary and compelling reasons for the reduction of Gray's sentence, the combination of these factors with the circumstances of his current sentence is. … As of the time of this Order, Gray has been incarcerated for over twenty-four years and is sixty-nine years old. If Gray were to be sentenced under the current sentencing guidelines and 21 U.S.C. § 841, he would not face a life sentence. Gray's convictions for felony sale of methamphetamine on July 26, 1989 and July 27, 1989 were not separated by an intervening arrest and both offenses were in the same charging instrument. Today, these offenses would be considered one offense for the purpose of sentencing Gray. See U.S.S.G. § 4A1.2(a)(2). Gray would therefore have one prior drug related offense under 21 U.S.C. § 841 and face a mandatory minimum of fifteen years. Even if both of Gray's prior drug felonies qualified under 21 U.S.C. § 841, the mandatory minimum would be twenty-five years, rather than the life sentence he is now serving. … Gray is the only Defendant in several related cases serving a life sentence. (Doc. 154, Ex. A, PSR at 5). Of the eight other defendants to the conspiracy, three received probation, and the terms of imprisonment ranges from 60 months to 360 months. The head of the conspiracy, Randy Shultz, received a sentence of 324 months, or twenty-seven years. Id … After careful consideration of the entire record, the Court finds that the circumstances of Gray's mandatory life sentence—in particular, the change in law that would not have required Gray to serve a mandatory life sentence if he were sentenced today—combined with his age and medical concerns constitute extraordinary and compelling reasons to reduce Gray's life sentence under 18 U.S.C. § 3582(c)(1)(A). Furthermore, the Court finds that §§ 3553(a) and 3142(g) factors warrant a reduction in Gray's sentence. The Court hereby reduces Gray's sentence to time served with 10 years of supervised release.”



Death Watch: The BOP has identified a fatality from several months ago as Walter Spragg, 29, of FCI Talladega, who died November 19, 2020, No reason is provided for the late publication of this victim's identify. Inmate deaths remain at 252. Five of these inmates died while on home confinement. Staff deaths remain at 5.


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