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September 6, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 114 BOP facilities and 13 RRCs

Currently positive-testing inmates: 585 (down from 616) Currently positive-testing staff: 680 (unchanged) Recovered inmates currently in the BOP: 49,066 (down from 49,108) Recovered staff: 13,659 (unchanged)


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

Schuylkill FCI: 99 (down from 116)

Canaan USP: 49 (unchanged)

Yazoo City Low FCI: Sheridan FCI: 48 (unchanged)

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

Central Office HQ: 59 (unchanged)

Rochester FMC: 32 (unchanged)

Carswell FMC: 28 (unchanged)

System-wide testing results: Presently, BOP has 141,896 federal inmates in BOP-managed institutions and 13,898 in community-based facilities. Today's stats: Completed tests: 128,711 (down from 128,723) Positive tests: 55,359 (down from 55,371)


Total vaccine doses administered: 329,106 (up from 328,933 )


Case Note:


In U.S. v. JAMES THOMAS BRICE, a/k/a Boo, Defendant - Appellant., No. 21-6776, 2022 WL 3715086 (4th Cir. Aug. 29, 2022) (unpublished) (per curium) the Fourth Circuit remanded denial of compassionate release application, with instructions for district court to reconsider whether non-retroactive changes in law can be extraordinary and compelling in light of Concepcion v. U.S., explaining: "James Thomas Brice appeals the district court's order denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018 (the “Act”), Pub. L. No. 115-391, § 603(b)(1), 132 Stat. 5194, 5239. For the reasons discussed below, we vacate the district court's order and remand this matter for further consideration in light of the Supreme Court's ruling in Concepcion v. United States, 142 S. Ct. 2389 (2022). … In his motion for compassionate release, Brice maintained that his 262-month sentence, which was imposed in January 2009, should be reduced to time served because three underlying considerations, taken together, satisfied the “extraordinary and compelling reasons” standard. These factors were: (1) Brice's age (then 52) and identified medical conditions, coupled with the high rate of infection in his place of incarceration and his prior COVID-19 infection; (2) changes in federal sentencing law meant that Brice no longer qualified as a career offender because he was not convicted of a “controlled substance offense” and his sentencing range under the now-operative Sentencing Guidelines would be lower; and (3) an unwarranted disparity between Brice's sentence and the sentences imposed on others in the underlying narcotics conspiracy. In deciding this motion in relevant part, the district court acknowledged its authority under McCoy to consider any of the “extraordinary and compelling” reasons advanced by Brice. The court further acknowledged that, “if Brice were to be sentenced today after Norman and certain intervening changes to the sentencing guidelines, his advisory guideline range would likely be meaningfully lower.” J.A. 93.4 The court observed, though, that the Act “did not expressly change the law in any way that would modify Brice's sentence, and it did not suggest or require the recalculation of existing sentences. Neither Norman nor the changes to the sentencing guidelines are retroactively applied on collateral review.” Id.. The court thus declined to find that the identified “non-retroactive changes to sentencing case law or revisions to the sentencing guidelines” satisfied the “extraordinary and compelling reasons” standard. Id. at 94. Brice challenges this ruling on appeal and, in light of the Supreme Court's decision in Concepcion, we question the district court's reliance on the nonretroactivity of Norman and the relevant Guidelines changes to conclude that the advanced postsentencing legal developments could not satisfy the “extraordinary and compelling reasons” standard. In Concepcion, the Supreme Court considered whether, in the context of a motion for sentence reduction under § 404(b) of the Act, a district court may consider intervening legal and factual developments in determining whether a reduction is appropriate. The Court ruled that district courts may do so and that, “[b]ecause district courts are always obligated to consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them.” Concepcion, 142 S. Ct. at 2396. The Court further recognized, though, that the Act “does not compel courts to exercise their discretion to reduce any sentence based on those arguments.” Id. With regard to the nonretroactivity of the relied-upon changes in the law, the Supreme Court explained that “[n]othing express or implicit in the First Step Act” prohibits or restricts a district court from “consider[ing] nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much.” Id. at 2403. This latter aspect of Concepcion undermines the district court's reasoning for rejecting the second prong of Brice's motion for compassionate release. Thus, although Concepcion arises in an admittedly different posture because it involved a motion pursuant to § 404(b) of the Act, we vacate the district court's order and remand this case to the district court for further consideration in light of Concepcion. We express no opinion as to the merits of the claim as remanded. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process."


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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