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September 14, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 107 BOP facilities and 14 RRCs

Currently positive-testing inmates: 309 (up from 308) Currently positive-testing staff: 735 (down from 712) Recovered inmates currently in the BOP: 49,198 (unchanged) Recovered staff: 13,717 (up from 13,714)


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

Danbury FCI: 35 (unchanged)

Berlin FCI: 28 (unchanged)

Canaan USP: 19

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

Central Office HQ: 57 (down from 58)

Rochester FMC: 36 (up from 35)

Brooklyn MDC: 32 (up from 31)

System-wide testing results: Presently, BOP has 142,096 federal inmates in BOP-managed institutions and 13,929 in community-based facilities. Today's stats: Completed tests: 128,713 (up from 128,712) Positive tests: 55,362 (up from 55,361)


Total vaccine doses administered: 329,577 (up from 329,485)


Case Note: Non-retroactive changes in the law, rehabilitation and hardships = release...


In U.S. v. HINANO HOKU KANUI, Defendant., No. CR 13-00667 JMS, 2022 WL 4120784 (D. Haw. Sept. 9, 2022) (Seabright, CJ), the court, citing non-retroactive changes in law that would result in a lower sentence today, as well as defendant’s rehabilitation, and hardships while incarcerated, sends defendant home, explaining "Defendant asserts three “extraordinary and compelling reasons” justifying compassionate release: (1) sentencing disparity; (2) rehabilitation efforts; and (3) hardships experienced while incarcerated. For the first reason, Defendant argues that if sentenced today, he would receive a term of imprisonment at or near the mandatory minimum of 120 months, rather than the 144-month term he received in May 2012. Id. at PageID ## 203–04. The crux of Defendant's sentencing-disparity argument is that his two prior burglary convictions are no longer considered “crimes of violence” under the current version of Guideline § 4B1.2, which was updated in 2016 with nonretroactive changes to the “career offender” designation. See U.S. Sent'g Guidelines Manual App. C, Amdt. 798 (U.S. Sent'g Comm'n 2021); see also Concepcion v. United States, 142 S. Ct. 2389, 2405 (2022) (Kavanaugh, J., dissenting) (describing the “non-retroactive 2016 Sentencing Guidelines amendment that substantially altered the career-offender guideline”). Without the career-offender designation, Defendant would not be subject to the associated increases in his total offense level and criminal history category. See ECF No. 59-1 at PageID ## 202–04. In turn, his guideline range would be greatly reduced, likely causing the court to impose a sentence well below 144 months (and near 120 months), according to Defendant. See ECF No. 59-1 at PageID # 203. Indeed, the government concedes that “[Defendant's] burglaries no longer would qualify as crimes of violence for career offender purposes under the Guidelines today.” … Assuming the court would depart from that 140–175 month range in a manner similar to how it departed downward from the lower end of the 262–327 month range applicable in 2012 (see PSR, ECF No. 39 at PageID # 107, ¶ 73), including by granting and considering the government's motion for downward departure, Defendant suspects that the court would impose a term of imprisonment at the mandatory minimum, 120 months, if sentencing Defendant today. The court agrees with Defendant's reasoning and his conclusion that, if sentenced today, he would receive a term of imprisonment well below 144 months. … Specifically, if the court's prior 45% departure—i.e., the percentage difference between 144 months and the lower end of the 262–327 month range—is applied to the lower end of the now-applicable guideline range of 140–175 months, the result is an arithmetically suggested sentence of 77 months. Although the court doubts it would sentence Defendant to that short of a sentence, the court is confident it would sentence Defendant below 120 months, very likely below 110 months—the time Defendant has already served for his convictions. The court, therefore, finds a sentence of time served, i.e., 110 months, to be appropriate when evaluating Defendant's sentencing disparity. Regardless of how the sentencing disparity is calculated in this case—either the strict 34-month difference4 between the sentence imposed in 2012 and the sentence that would likely be imposed today, or the 122-month difference between the lower ends of the two guideline ranges—the disparity falls within the range sufficient to constitute an extraordinary and compelling reason justifying compassionate release when considered in combination with Defendant's rehabilitation efforts and personal hardships. … Regarding hardships, Defendant has faced and continues to face considerable personal hardships while incarcerated.7 His father passed away after contracting COVID-19 in 2021 while Defendant was incarcerated. See ECF No. 59-4 at PageID # 225. Defendant had already lost his mother much earlier in life. See ECF No. 59-1 at PageID # 211. Even more regrettably, Defendant's son died from a stab wound in 2018, also while Defendant was incarcerated. See ECF No. 59-4 at PageID # 225. On top of that, Defendant suffers from serious medical issues, including a mental health condition and physical health conditions such as diabetes and sleep apnea. See ECF No. 59-1 at PageID # 212 (citing ECF No. 59-4). In sum, weighing Defendant's sentencing disparity, rehabilitation efforts, and personal hardships, the court concludes that there are extraordinary and compelling reasons warranting a reduction in Defendant's sentence. … The government opposes a reduction in Defendant's sentence principally because it asserts that intervening, nonretroactive changes in sentencing laws cannot be grounds for compassionate release. … The Ninth Circuit has yet to rule on this issue, but the Supreme Court's recent decision in Concepcion lends support for the “yes” side of the split by giving district courts “wide discretion” in considering all factors relevant to the re-evaluation of a defendant's sentence, including nonretroactive changes to sentencing laws. … For all the reasons discussed above, a reduction of Defendant's sentence to time served is sufficient to achieve the goals of sentencing under § 3553(a)(2).”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no new COVID-related fatalities. The total number COVID-related inmate deaths remains at 306. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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