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September 16, 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 16 RRCs

Currently positive-testing inmates: 320 (up from 319) Currently positive-testing staff: 735 (down from 736) Recovered inmates currently in the BOP: 49,101 (unchanged) Recovered staff: 13,732 (up from 13,720)


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

Danbury FCI: 35 (unchanged)

Berlin FCI: 28 (unchanged)

Canaan USP: 19 (unchanged)

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

Central Office HQ: 57 (unchanged)

Rochester FMC: 36 (unchanged)

Brooklyn MDC: 32 (unchanged)

System-wide testing results: Presently, BOP has 142,470 federal inmates in BOP-managed institutions and 14,137 in community-based facilities. Today's stats: Completed tests: 128,716 (up from 128,715) Positive tests: 55,364 (up from 55,363)


Total vaccine doses administered: 329,626 (unchanged)


Case Note: Ninth Circuit joins others holding that non-retroactive changes in law are extraordinary and compelling when combined with other circumstances...


In U.S. v. Chen, No. 20-50333, 2022 WL 4231313 (9th Cir. Sept. 14, 2022) (published) (Navarro, DJ) , the Ninth Circuit, joining the First, Fourth, and Tenth circuits, and holds that non-retroactive changes in law are extraordinary and compelling when combined with other circumstances explaining: "The question before us is whether that discretion extends to considering § 403(a)'s changes to stacked sentencing, or whether non-retroactive changes in sentencing law present an exception to the general principal that district courts may consider “any” extraordinary and compelling reason. A district court's discretion of course has limitations and is first and foremost constrained by any express mandate from Congress. InConcepcion v. United States, the Supreme Court recently stated that “[i]t is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court's discretion to consider information is restrained.” …The Third, Seventh, and Eighth Circuits have ruled that district courts may not consider § 403(a)'s non-retroactive changes, whether offered alone or in combination with other factors. United States v. Crandall, 25 F.4th 582 (8th Cir.), cert. denied, ––– U.S. ––––, 142 S. Ct. 2781, ––– L.Ed.2d –––– (2022); United States v. Andrews, 12 F.4th 255 (3d Cir. 2021), cert. denied, ––– U.S. ––––, 142 S. Ct. 1446, 212 L.Ed.2d 541 (2022); United States v. Thacker, 4 F.4th 569 (7th Cir. 2021), cert. denied, ––– U.S. ––––, 142 S. Ct. 1363, 212 L.Ed.2d 323 (2022). They reached this conclusion by reasoning that Congress explicitly made § 403(a)'s sentencing changes non-retroactive and that § 3582(c)(1)(A) should not provide a loophole to get around explicit non-retroactivity. … Nonetheless, both Andrews and Thacker still allow district courts to consider § 403(a)'s changes to stacked sentencing when analyzing the § 3553(a) factors. … The First, Fourth, and Tenth Circuits, on the other hand, all determined that district courts may consider § 403(a)'s non-retroactive changes to penalty provisions, in combination with other factors, when determining whether extraordinary and compelling reasons for compassionate release exist in a particular case. …We now join the First, Fourth, and Tenth circuits and conclude that district courts may consider non-retroactive changes in sentencing law, in combination with other factors particular to the individual defendant, when analyzing extraordinary and compelling reasons for purposes of § 3582(c)(1)(A). Congress has only placed two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission's policy statement, which does not apply here, and the requirement that “[r]ehabilitation ... alone” is not extraordinary and compelling. Neither of these rules prohibit district courts from considering rehabilitation in combination with other factors. See18 U.S.C. § 3582(c)(1)(A); 28 U.S.C. § 994(t). Indeed, Congress has never acted to wholly exclude the consideration of any one factor, but instead affords district courts the discretion to consider a combination of “any” factors particular to the case at hand. To hold that district courts cannot consider non-retroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done. In fact, such a categorical bar would seemingly contravene the original intent behind the compassionate release statute, which was created to provide the “need for a ‘safety valve’ with respect to situations in which a defendant's circumstances had changed such that the length of continued incarceration no longer remained equitable.” …The Supreme Court's recent decision in Concepcion confirms that, in the context of modifying a sentence under the First Step Act, “[i]t is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court's discretion to consider information is restrained.” 142 S. Ct. at 2396. Since Congress has not legislated to create a third limitation on extraordinary and compelling reasons prohibiting district courts from considering non-retroactive changes in sentencing law, we decline to create one now. … The district court erred when it declined to consider § 403(a)'s non-retroactive changes to § 924(c) stacked sentencing when evaluating Chen's motion for compassionate release. We remand for the district court to reassess whether extraordinary and compelling reasons exist when considering non-retroactive changes in sentencing law, in combination with other factors particular to Chen's case.”


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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