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September 3, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts: Currently positive-testing inmates: 529 (up from 528) Currently positive-testing staff: 501 (up from 492) Recovered inmates: 42,803 (down from 42,807) Recovered staff: 7,283 (up from 7,278)


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

Coleman II USP: 107 (unchanged)

San Diego MCC: 62 (down from 63)

Mendota FCI: 44 (unchanged)

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

Pollock USP: 38 (unchanged)

Oakdale I FCI: 22 (unchanged)

Beaumont USP: 19 (unchanged)

System-wide testing results: Presently, BOP has 131,120 federal inmates in BOP-managed institutions and 14,469 in community-based facilities. Today's stats: Completed tests: 120,707 (up from 120,589) Positive tests: 42,838 (unchanged)

Total vaccine doses administered: 218,091

Case Note: Defendant's claim that he would not currently be subject to enhancement as a career offender is more properly a habeas issue pursued under 28 UC § 2255 not a compassionate release issue, unlike a claim of unfairness resulting from the non-retroactive amendments to § 924(c) stacking...


In U.S. v. Ivan Alexander Copeland, 2021 WL 3914266 (E.D. Va. Aug. 30, 2021) (Doumar, J.), the court found that, unlike McCoy’s pronouncement that the FSA's changes to 924(c) stacking -- not made retroactive -- can be extraordinary and compelling, changes in circuit law regarding career offender status don’t enjoy the same treatment because the latter is not mandatory, and are more properly raised in a habeas petition, explaining: "Defendant's Motion requests that the Court reduce his sentence because the three prior crimes that qualified him as a career offender should no longer be applicable. … The Government opposes on multiple grounds. First, the Government argues that Defendant's Motion is truly a “second or successive” motion under § 2255, which should not be allowed absent authorization from the Fourth Circuit. … The Court agrees with the Government that § 2255 would be the appropriate vehicle for Defendant to request the sought-after relief. The Supreme Court has held that § 2255 is the appropriate vehicle by which a federal prisoner may challenge both his conviction and sentence. Davis v. United States, 417 U.S. 333, 343–44 (1974). … The Fourth Circuit in McCoy found that certain § 924(c) sentences can be “extraordinary and compelling reasons” for a sentence reduction under § 3582(c)(1)(A) based on two general observations. “First is the sheer and unusual length of the sentences. As the district court noted in [United States v.] Bryant, the defendants’ sentences in that case were about twice as long as federal sentences imposed today for murder.” McCoy, 981 F.3d at 285. Second, the Fourth Circuit found relevant the disparity of sentencing between defendants convicted under § 924(c) before and after the FSA was passed. … As stated, the compassionate release statute properly deals with reduction of an otherwise valid sentence. The “stacked” sentences in McCoy were still valid because the FSA did not make the abolition of “stacked” sentences retroactive. SeeMcCoy, 981 F.3d at 275. However, the pronouncement of a more lenient sentence for § 924(c) convictions by the FSA provided a stark dichotomy to the otherwise valid but “unusual length” of “stacked” sentences. Id. at 285. Any arguments that certain crimes should not or do not qualify for career offender enhancements under the Sentencing Guidelines effectively challenge the validity of such enhancements themselves. The nature of such claims properly brings them under the provisions of § 2255. The nature of career offender enhancements and § 924(c) sentences also provides another distinction as to why career offender enhancements usually will not be cognizable under § 3582(c)(1)(A). Convictions under § 924(c) carry with them mandatory, consecutive sentences put in place specifically by an enactment of Congress. Career offender enhancements do not carry such hefty, mandatory weights as they are used to establish an increased Guidelines range at sentencing. See U.S.S.G. § 4B1.1(b). To be sure, career offender enhancements can significantly raise a defendant's Guidelines range compared to the lack of such enhancements, but the Guidelines are no longer mandatory and district court judges are well within their discretion to downwardly depart from such enhanced Guidelines ranges if individual circumstances warrant. SeeUnited States v. Booker, 543 U.S. 220, 245 (2005). Therefore, career offender enhancements do not carry the “extraordinary” characteristic of potentially drastic, mandatory sentencing enhancement that “stacked” convictions under § 924(c) did before the FSA. Allowing claims historically reserved for § 2255 to fall under the umbrella of § 3582(c)(1)(A) would read into the compassionate release provisions an implicit repeal of § 2255 where no such Congressional intent can be gleamed. By its own terms, barring a set of unusual circumstances, § 2255 is the exclusive source for federal prisoners challenging the validity of a conviction or sentence.”)


Death Watch: The BOP has identified no new fatalities. Inmate deaths remain at 248. Five of these inmates died while on home confinement. Staff deaths remain at 5.


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