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September 29, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG



Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 93 BOP facilities and 10 RRCs

Currently positive-testing inmates: 279 (down from 292) Currently positive-testing staff: 480 (up from 476) Recovered inmates currently in the BOP: 48,911 (down from 48,965) Recovered staff: 14,064 (up from 14,056)


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

Yazoo City Medium FCI: 61

Brooklyn MDC: 32 (unchanged)

Yazoo City Low FCI: 29

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

Central Office HQ: 58 (unchanged)

Brooklyn MDC: 33 (unchanged)

Rochester FMC: 26 (unchanged)

System-wide testing results: Presently, BOP has 142,942 federal inmates in BOP-managed institutions and 14,094 in community-based facilities. Today's stats: Completed tests: 128,705 (unchanged) Positive tests: 55,353 (unchanged)


Total vaccine doses administered: 330,108 (up from 329,974)


Case Note: Pre-Booker lifer gets relief...


In U.S. v. GUADALUPE FAVELA, 2022 WL 4450496 (E.D. Cal. Sept. 23, 2022) (Drozd, J.), The court reduced this lifer's then-mandatory Booker sentence to time-served because, today, the guidelines are advisory, not mandatory, and life sentences for drug dealing are seldom handed down, explaining: "On July 31, 1995, the court adopted the PSR's recommendation and sentenced defendant to life imprisonment as to count one, life imprisonment as to counts two through six with those terms to run concurrently with each other and to the life sentence imposed as to count one and to any other federal or state sentence imposed upon defendant Favela, and a $300 mandatory special assessment. … Following the Sentencing Commission's promulgation of Amendment 782, which generally revised the drug quantity table and chemical quantity tables and which applied retroactively to previously sentenced defendants, on June 18, 2015, defendant Favela filed a motion seeking a reduction of his sentence under 18 U.S.C. § 3582(c)(2), U.S.S.G. § 1B1.10(b)(1), and Amendment 782. … Nevertheless, in denying defendant's motion seeking a reduction of his sentence in November 2015, the then-assigned district judge noted:


Although the Court is without authority to reduce Defendant's sentence, the Court commends Defendant for the impressive efforts he has taken towards self-improvement, and his many accomplishments while in prison, which include completing several educational and lifestyle courses, mentoring his fellow inmates, engaging in various volunteer activities, providing financial support to his family members, becoming proficient in English, and earning his GED. The Court's denial of the instant motion is in no way a reflection of Defendant's character, but is a matter of law.

(Id.)

Today, defendant remains in the custody of the U.S. Bureau of Prisons (“BOP”) and is serving his life sentence at Federal Correctional Institution, Victorville Medium I (“FCI Victorville Medium I”). … As summarized above, in 1995, defendant was convicted of several serious drug trafficking offenses, including the manufacturing of approximately 224 pounds of methamphetamine over the three years that he operated his criminal enterprise. (Doc. Nos. 322; 327.) The presentence report determined that defendant's lack of prior criminal history placed him in category I and that his total offense level was 43, therefore calling for a life term of imprisonment under the mandatory sentencing guidelines in effect in 1994. … Defendant Favela urges this court to now find that “other reasons” warranting his compassionate release exist based on the fact that if he were sentenced today, “in a post-Booker advisory guideline landscape,” his sentence “would be lower for the simple reason that an offense such as his—one involving only methamphetamine, with no allegations of violence, for a first-time offender without any criminal history—would not be punished with a life term,” and that “post-Booker, this Court would have discretion to vary below a life term.” (Doc. No. 609 at 10) (citing United States v. Booker, 543 U.S. 220 (2005)). Defendant emphasizes that because the sentencing guidelines were considered to be mandatory when he was sentenced back in 1995, “no sentencing judge affirmatively decided that [he] truly deserved a life sentence as his first prison term.” In support of his argument, defendant Favela cites to the district court's decision in Parker which found extraordinary and compelling reasons existed in that case to reduce the defendant's life sentence to “time served, followed by five years of supervised release” in part because his life sentence was imposed under a sentencing regime that is no longer valid post-Booker. (Doc. No. 622 at 9) (citing Parker, 461 F. Supp. 3d at 985–86).10 The district court in Parker explained its independent assessment and reasoning as follows:

In 2000, pursuant to the then-mandatory sentencing guidelines, the Court sentenced Parker to life imprisonment. In 2005, the Supreme Court subsequently determined in Booker that insofar as the guidelines were mandatory, they were unconstitutional, rendering the guidelines “effectively advisory.” Courts have specifically recognized the significance of Booker where, pursuant to other provisions of the FSA, inmates have sought reductions of sentences imposed prior to Booker. See Jones, 431 F. Supp. 3d at 747 (“The retroactive nature of the [FSA] provides long-awaited relief to those sentenced under the unconstitutionally imposed mandatory guideline ranges.”); accord United States v. Stanback, 377 F. Supp. 3d 618, 625 (W.D. Va. 2019) (“The court finds that it has authority under 18 U.S.C. § 3582(c)(2) to modify Stanback's sentence, taking into account the advisory nature of the guidelines after Booker and the considerations set forth in 18 U.S.C. § 3553(a).”).

Parker, 461 F. Supp. 3d at 981. The undersigned agrees with the reasoning employed by the district court in Parker. Here, defendant Favela was sentenced to life imprisonment solely because the sentencing guidelines were considered mandatory in 1995; the sentencing court had no discretion to impose any other sentence absent a recognized ground for departure. The undersigned further agrees that like the defendant in Parker, defendant Favela “is currently serving life in prison, pursuant to a judgment rendered under a sentencing regime that is no longer in effect and has since been declared unconstitutional.” Id. The court recognizes that the Sentencing Guideline range applicable to defendant Favela has not been altered by the Supreme Court's Booker decision. That is, even if defendant Favela were to be sentenced today, his total offense level would still be 43, and the applicable advisory sentencing guideline range would still be “life.” But, importantly, imposition of a life sentence would no longer be mandated because the Sentencing Guidelines are no longer mandatory but are instead only advisory. See United States v. Booker, 543 U.S. 220 (2005) (declaring the Guidelines advisory). Indeed, nothing in the record before the court affirmatively suggests that the sentencing judge would have imposed a life term of imprisonment had such a sentence not then been mandatory. Moreover, as the court explained at the hearing on the pending motion, in the undersigned's many years of experience sentencing defendants in this heavily-impacted district, which carries some of the heaviest criminal caseloads in the country, the court has never imposed a sentence as long as the life sentence imposed on defendant Favela. Given the court's experience in this regard, and despite the fact that his applicable guideline range is still “life,” the court agrees with defendant Favela that he would not be sentenced to a term of life imprisonment if he were to be sentenced today under contemporary standards. … Indeed, in light of recent Supreme Court and Ninth Circuit precedent, this court must consider the changes in sentencing laws when ruling on the pending motion. The Ninth Circuit has now held that in light of the Supreme Court's decision in Concepcion, courts must consider “non-retroactive changes in sentencing law” when evaluating compassionate release motions brought under § 3582(c)(1)(A). See Chen, 2022 WL 4231313, at *8 (citing Concepcion, 142 S. Ct. at 2396) (“remand[ing] 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,” because “[t]he 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.”) … Accordingly, the court concludes that defendant Favela has met his burden of demonstrating that “other reasons” exist constituting extraordinary and compelling reasons for the granting of compassionate release in his case under § 3582(c)(1)(A).”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today the BOP identified no additional inmate fatalities and so the total number COVID-related inmate deaths remains at 308. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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