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September 29, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 480 (down from 484) Currently positive-testing staff: 496 (down from 501) Recovered inmates: 43,032 (down from 43,117) Recovered staff: 7,741 (up from 7,717)


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

Sheridan FCI: 71 (down from 75)

Beaumont USPI: 67 (unchanged)

Herlong FCI: 66 (down from 70)

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

Oakdale I FCI: 27 (unchanged)

Phoenix FCI: 27 (unchanged)

Forrest City Low FCI 16 (unchanged)

System-wide testing results: Presently, BOP has 131,616 federal inmates in BOP-managed institutions and 14,397 in community-based facilities. Today's stats: Completed tests: 122,271 (up from 122,141) Positive tests: 43,043 (down from 43,132)

Total vaccine doses administered: 226,506

Case Note: Because the predicate offenses that led to a "three strikes" life sentence involved such minimal amounts of drugs; and the government admitted that the offenses no longer support a life sentence; and the government recognized that the § 851 notice should have but did not inform defendant of the government's intent to seek a term of life imprisonment; and the defendant had been substantially rehabilitated, the circumstances were extraordinary and compelling, justifying compassionate release...


In U.S. v. STEVE LISCANO, 2021 WL 4413320 (N.D. Ill. Sept. 27, 2021) (Durkin, J.), the court found that several factors justified a finding of extraordinary and compelling circumstances, explaining.: "In 2003, Steve Liscano was convicted of conspiring to distribute cocaine. He was sentenced to life imprisonment because he had two previous felony drug convictions. Liscano's appeal was denied, and he unsuccessfully petitioned for habeas relief. Liscano now moves for compassionate release pursuant to the First Step Act, 18U.S.C. §3582(c)(1)(A). For the reasons that follow, the Court grants Liscano's motion and reduces his life sentence to time served. Three strikes and you're out. That's the rule in baseball, but it was also the rule on the books when Steve Liscano was sentenced to life imprisonment in 2005 for conspiring to distribute cocaine. Before receiving his life sentence, Liscano had been twice convicted under Illinois law for possessing cocaine. Those two felony drug convictions, combined with his third drug conviction stemming from the conspiracy, required the sentencing judge to impose a term of imprisonment no less than life behind bars. The first conviction came just after Liscano's 18th birthday in 1995 when he was caught with a baggie of cocaine in his pocket. R. 748 ¶¶ 310-315. He received a two-year prison sentence but was paroled after serving four months. Id. ¶¶ 310-311. The second conviction occurred five years later.Id. ¶¶ 385-386. Authorities searched his home and found a residual amount of cocaine—.9 grams to be exact.Id. ¶¶ 390-392; R. 736-1 at 6; R. 736-16 at 23. Liscano was sentenced to 1.5 years in prison, but he was again paroled after three months. Then came the third conviction. … The main conspirator was Juan Corral, whose incriminating phone calls with others (including Liscano) were recorded by the government. See United States v. Bustamante, 493 F.3d 879, 882 (7th Cir. 2007). Corral pled guilty and agreed to testify against his co-conspirators, while Liscano exercised his constitutional right to trial. Id. … the judge was required by statute to impose a mandatory minimum sentence of life imprisonment. Indeed, before trial, the prosecutor assigned to Liscano's criminal case filed an information under 21 U.S.C. § 851 indicating the government's intent to seek an enhanced sentence based on Liscano's prior drug convictions. See R. 281. While the notice did not explicitly state that the enhanced sentence would be life imprisonment, Liscano was federally convicted under 21 U.S.C. § 841, which at the time required a mandatory minimum sentence of life for a defendant who had two or more prior convictions for a “felony drug offense.” … This definition casts a wide net, and since Liscano's predicate offenses fell within its reach—even though the first offense involved a baggy of cocaine and the second mere residue—the sentencing judge's hands were tied. He had to impose a life sentence. Expressing some hesitation to do so, the judge remarked that Liscano's predicate offenses were “not what I would consider to be extremely aggravated offenses of involvement with controlled substances. Unfortunately, that is not the criterion.” … Liscano argues that an extraordinary reason supporting a sentence reduction exists in this case because the government has made three concessions that bear directly on his life sentence. For the most part, this Court agrees. The first concession relates to the argument Liscano previously advanced in his § 2241 petition that his baggy conviction should not have counted as a predicate offense under Mathis v. United States, 136 S. Ct. 2243 (2016). … What is important here, however, is that in the context of a life sentence— which is the most severe, unforgiving sentence a defendant can receive absent execution—the government has firmly taken the position that under Supreme Court precedent Liscano's punishment was wrongly imposed. The government rarely admits that any sentence is legally flawed, though that reason in and of itself is not why the circumstances are extraordinary here. Rather, it is the government's admission concerning Liscano's life sentence that makes this situation exceptional. … Liscano is 44 years-old. Requiring him to remain in prison for the rest of his life when the government admits that his sentence is flawed produces, quite simply, an intolerable result. … That is especially so considering the nature of his predicate offenses. Both involved possession of small amounts of cocaine as a young adult, both were unrelated to violence, and both resulted in no more than a few months spent in prison. In the sentencing judge's own words, they were not “extremely aggravating offenses.” And yet, they were both responsible for catapulting Liscano's sentence into a lifetime of punishment. Viewed in this light, the government's admission that Liscano's predicates no longer support his sentence makes this case extraordinary. The second government concession raised in Liscano's motion concerns the notice filed by the government before trial disclosing its intent to seek an enhanced penalty at sentencing. … Several courts have criticized federal prosecutors in other districts for applying what has been described as a “stunningly arbitrary” approach in seeking § 851 enhancements. … The United States Sentencing Commission similarly concluded just a few years ago that there are significant disparities in the use of § 851 notices based on geography, race, and whether the defendant proceeded to trial. In any event, the § 851 notice that the prosecutor filed in Liscano's criminal case specified the prior convictions on which an enhanced penalty would be sought, but did not explicitly state which enhanced penalty Liscano would actually face— namely, life imprisonment. … In his motion for compassionate release, Liscano raises the sufficiency issue again, pointing out that he told the judge he did not know before sentencing that the government was pursuing a life sentence against him. In response, the government correctly states that the sentencing judge already addressed this issue by denying Liscano's objection. But the government also states that the specific § 851 notice filed against Liscano was not in a form generally used by prosecutors here in the Northern District of Illinois, and that the inclusion of more detail—particularly with respect to the life sentence—is a better practice, and the general practice in this district. R. 746 at 11. While subtle, this admission is important. Had the notice explicitly stated that the government intended to pursue an enhanced mandatory minimum sentence of life imprisonment, Liscano could have digested that information before trial, fully weighed his options, and possibly decided to plead guilty in hopes of securing a reduced sentence. … The bottom line is this: while the § 851 notice was sufficient as a matter of law, the government's admission years later that the notice should have been more forthcoming contributes to the extraordinary grounds for relief. … The government further argues that changes in the law occur with some frequency, and points out that the Seventh Circuit recently held that non-retroactive changes to a statute cannot establish an extraordinary and compelling reason for release under § 3582(c)(1)(A)(i). See United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021). … The government is largely correct. Changes in the law do occur with some frequency, and there are other defendants whose sentences were enhanced based on prior convictions that no longer qualify as predicates under Mathis.4 But that does not preclude a finding that Liscano's particular circumstances are extraordinary. Unlike the vast majority of criminal defendants, Liscano was sentenced to life imprisonment. … The Court has served as a federal judge for nearly 9 years, previously was a criminal defense attorney for 20 years, and before that served as a federal prosecutor for more than 13 years, and has never seen a set of facts that resemble those involved here. Between the predicate offenses involving such minimal amounts of drugs, the admission that the offenses no longer support a life sentence, and the recognition that the § 851 notice should have but did not inform Liscano of the government's intent to seek a term of life imprisonment, this case—by definition—is “beyond what is usual, customary, regular, or customary.” So, this case is certainly an uncommon one. Yet there's another factor that weighs in Liscano's favor: his rehabilitation efforts in the nearly two decades since being incarcerated. … So, this case is certainly an uncommon one. …No one can reasonably argue that Liscano—whose predicate offenses included possessing a baggy of cocaine at the age of 18 and mere residue a few years later—deserves the same life sentence as Joaquin “El Chapo” Guzman. In the same way, no reasonable person can take the position that requiring Liscano to spend the remainder of his life incarcerated is a worthy endeavor that will benefit society, keep the public safe, or advance our notions of justice. That said, today's decision should not be construed as an invitation to open the floodgates. Relief under Section 3582(c)(1)(A) of the First Step Act is usually unavailable, reserved only for narrow circumstances. This unique case does not change that fact. Nor should this decision be interpreted as a critique of the government. Nearly every indication in the record suggests that the prosecutors on this case have acted in good faith. The short of the matter is that the circumstances surrounding Liscano's sentence simply cry out for a result different than a lifetime behind bars.”


Death Watch (press releases announcing BOP COVID-related deaths may be found here): The BOP has added an additional inmate fatality, bringing the inmate death toll to 259. Ten of these inmates died while on home confinement. Staff deaths remain at 6.




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