July 20, 2021: BOP COVID-19 AND COMPASSIONATE RELEASE UPDATE

Quick Facts: Currently positive-testing inmates: 180 (up from 168) Currently positive-testing staff: 112 (down from 115) Recovered inmates: 43,427 (down from 43,468) Recovered staff: 6,962 (up from 6,955) Institutions with the largest number of currently positive-testing inmates:

Texarcana FCI: 126 (up from 118)

Houston FDC: 12 (unchanged)

Bennettesville FCI: 5 (unchanged)

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

Texarcana FCI: 7 (down from 8)

Brooklyn MDC: 5 (unchanged)

Leavenworth USP: 5 (unchanged)

System-wide testing results: Presently, BOP has 130,436 federal inmates in BOP-managed institutions and 14,108 in community-based facilities. Today's stats: Completed tests: 117,288 (up from 117,235) Positive tests: 43,035 (down from 43,061)

Total Vaccine doses distributed: 202,346

Case Notes: Three recent cases addressing whether a change of law that would result in a lower sentence today, even if not statutorily made retroactive, can support compassionate release -- two district court decisions for the defense, one circuit court decision for the government. Lengthy, but worth the read...

In US. v. EMMANUEL LEWIS HUGGINS, 2021 WL 3025459 (W.D. Va. July 16, 2021) (Moon, J.), the court found that disparity caused by change in circuit law was extraordinary and compelling, explaining: “The Court finds that the disparity in length of sentence Huggins would face today, post-Norman [ed. note: Norman held that a Defendant's prior conviction for conspiracy to possess cocaine and cocaine base with intent to distribute was not categorically a “controlled substance offense,” because the underlying statute does not require proof of an overt act, which is an element of generic conspiracy offense, so that the offense of conviction was broader than the generic offense] is an extraordinary and compelling circumstance that warrants relief. Taking the § 3553(a) factors into account, the Court will reduce Huggins' sentence to time served plus fourteen days, and grant his motion for compassionate release. … Huggins currently resides in a halfway house through the Residential Reentry Management program. Dkt. 61 at 3. He has completed over 90 percent of his sentence and is scheduled for release on December 4, 2021. … Although the Fourth Circuit has held that Norman's holding must be applied to a recalculation of the guidelines range upon resentencing under the First Step Act, see Lancaster, 997 F.3d at 175, 177, it has not yet considered whether Norman's holding, standing alone, constitutes an extraordinary and compelling circumstance warranting relief. However, the Fourth Circuit has held that a district court may consider “the severity of the defendant['s] ... sentence[ ] and the extent of the disparity between the defendant['s] sentence[ ] and [that] provided for under [current law]” when deciding a motion for compassionate release. McCoy, 981 F.3d at 286. … Here, Norman would change Huggins' original guideline range from 262 to 327 months to 120 to 150 months. Neither the original guideline range nor the post-Norman guideline range approaches a sentence of “sheer and unusual length” comparable to the ones that the Fourth Circuit considered in McCoy. 981 F.3d at 285 (noting that today, the defendants' sentences would be “dramatically shorter—in most cases, by 30 years—than the ones they received”). Still, the applicable guideline range, had Huggins been sentenced today, is more than half of what it was originally—simply because he was sentenced before Norman. That difference is also present when taking into account the Government's substantial assistance motion, which was an approximately 42% downward departure from the low-end of the guidelines. The same accounting would place Huggins within a range of 70 to 87 months today. The sentence Huggins received is at least 63 months, or more than five years, longer than the high end of this revised guideline range, and nearly twice the median of this revised range. While not as dramatic as the decades-long differences the Fourth Circuit considered in McCoy, the Court finds a “gross disparity” in the sentences that is not warranted. 981 F.3d at 285.Under these circumstances, the Court finds that Huggins' sentence is an “extraordinary and compelling” reason warranting a sentence reduction in light of Norman.”

In U.S. v. KAREEM ALLEN SHAW, 2021 WL 3007266 (W.D. Va. July 15, 2021) (Urbanski, CJ.), the court granted compassionate release due to a non-retroactive change in circuit law, explaining: "On April 22, 2015, the court sentenced Shaw to 216 months of incarceration and 5 years of supervised release. … On May 20, 2016, Shaw, through counsel, filed a motion to vacate and correct his sentence, ECF No. 527, on the basis that, in light of the Supreme Court's ruling in Johnson v. United States, 576 U.S. 591 (2015), the court would no longer classify him as a career offender if sentenced today, but Shaw later filed a notice of voluntary dismissal of that motion. … He is eligible for home detention on January 8, 2029, and is scheduled for release on July 8, 2029. … Shaw also argues that the court would not classify him as a career offender if he were sentenced today. Mot., ECF No. 615, at 7–8. Shaw contends that he is not a career offender because post-sentencing precedents have since clarified that Virginia burglary is not a crime of violence and, as such, is not a career offender predicate offense. Id. at 8 (citing, e.g., Castendet-Lewis v. Sessions, 855 F.3d 253 (4th Cir. 2017)). Without the career offender designation and after receiving a comparable reduction to the one he received to his original sentence, Shaw argues that he would be sentenced to 194 months today, rather than the 216-month sentence he is currently serving. The government does not address whether or not Shaw would be considered a career offender if sentenced today. Instead, it argues that this court has no authority to grant him compassionate release on those grounds. Mem. in Opp'n, ECF No. 630, at 15. The Fourth Circuit explicitly rejected this argument in McCoy. … The court agrees that Shaw, if sentenced today, would not receive the career offender designation because his attempted burglary conviction is not a predicate offense. Section 4B1.1(a) provides that a defendant is a career offender if, among other things, “the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” Section 4B1.2(a) defines the “crime of violence” predicate offense for career offender status. As Shaw notes in his motion, subsequent case law makes clear that Virginia burglary, attempted or otherwise, does not qualify as a crime of violence. See, e.g., Castendet-Lewis v. Sessions, 855 F.3d 253, 264 (4th Cir. 2017). … Without the career offender status, his guidelines range would decrease from 360 months to life (offense level 37 and criminal history category VI) down to 324 to 405 months (offense level 37 and criminal history category V). Applying the same 40 percent downward variance to this guidelines range, Shaw argues that the court would sentence him to 194 months today, or 22 months less than his current sentence. … While lower than the sentence reductions considered in McCoy, 22 months is almost two years of Shaw's life. It is more than 10 percent of his current 210-month sentence. Those 22 months are undoubtedly extraordinary and compelling to Shaw, and the court agrees that the disparity is significant. Thus, the court finds that the 22-month discrepancy between Shaw's current sentence and the sentence he would be given if sentenced today meets the threshold discussed in McCoy, and Shaw's change in career offender status if sentenced today is an “extraordinary and compelling” reason to warrant a sentence reduction under § 3582(c)(1)(A).”

In U.S. v. Thacker, No. 20-2943, 2021 WL 2979530 (7th Cir. July 15, 2021) (published) (Scudder, J.), the Seventh Circuit held -- contrary to the reasoning of the two district court decisions immediately above -- that the lack of retroactivity of the FSA’s removal of the stacking penalties for 924(c) cannot be, under any circumstances, extraordinary and compelling, explainin: "Federal courts across the country have—and continue to—weigh in on this question, sometimes reaching different conclusions. We now weigh in too—and agree with the district court. Given Congress's express decision to make the First Step Act's change to § 924(c) apply only prospectively, we hold that the amendment, whether considered alone or in connection with other facts and circumstances, cannot constitute an “extraordinary and compelling” reason to authorize a sentencing reduction. … Had Ross Thacker been sentenced after the First Step Act became law, he would have faced a 14-year mandatory minimum—7 years for each of his two § 924(c) convictions for brandishing a firearm during an armed robbery. Instead, Thacker faced a 32-year sentence for his two § 924(c) convictions. That 18-year difference understandably means all the world to Thacker. … In denying Thacker's motion, the district court lacked the benefit of our recent decision in United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020). As a result, the district court made the mistake of resting a part of its reasoning on the Sentencing Commission's policy statement defining what may constitute an extraordinary and compelling reason for purposes of a discretionary compassionate release sentencing reduction under § 3582(c)(1)(A)(i). … But that mistake is of no moment on appeal because the district court also expressly addressed Thacker's argument on the merits, and observed that Congress, in § 403(b) of the First Step Act, expressly made the anti-stacking amendment effective only prospectively. Congress's choice, the district court concluded, meant that the sentencing disparity resulting from the amendment to § 924(c) could not constitute an extraordinary and compelling reason for a discretionary sentencing reduction and early release under § 3582(c)(1)(A). … There is no way to read that choice as anything other than deliberate, for Congress charted a different course in other provisions of the First Step Act. … Interpreting § 403 to apply retroactively would unwind and disregard Congress's clear direction that the amendment apply prospectively. The district court was right to see Thacker's motion, at least in part, as an attempted end-run around Congress's decision in the First Step Act to give only prospective effect to its amendment of § 924(c)’s sentencing scheme. … The compassionate release statute, § 3582(c)(1)(A), affords district courts discretion to reduce a term of imprisonment upon finding, among other requirements, “extraordinary and compelling reasons to warrant such a reduction.” … But the discretionary authority conferred by § 3582(c)(1)(A) only goes so far. It cannot be used to effect a sentencing reduction at odds with Congress's express determination embodied in § 403(b) of the First Step Act that the amendment to § 924(c)’s sentencing structure apply only prospectively. To conclude otherwise would allow a federal prisoner to invoke the more general § 3582(c) to upend the clear and precise limitation Congress imposed on the effective date of the First Step Act's amendment to § 924(c). See United States v. Jarvis, 999 F.3d 442, 443–44 (6th Cir. 2021). Put another way, there is nothing “extraordinary” about leaving untouched the exact penalties that Congress prescribed and that a district court imposed for particular violations of a statute. See United States v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021) (Tymkovich, C.J., concurring). … We harbor broader concerns with allowing § 3582(c)(1)(A) to serve as the authority for relief from mandatory minimum sentences prescribed by Congress. We see nothing preventing the next inmate serving a mandatory minimum sentence under some other federal statute from requesting a sentencing reduction in the name of compassionate release on the basis that the prescribed sentence is too long, rests on a misguided view of the purposes of sentencing, reflects an outdated legislative choice by Congress, and the like. Rationales along those lines cannot supply an extraordinary and compelling reason to reduce a lawful sentence whose term Congress enacted, and the President signed, into law. Any other conclusion offends principles of separation of powers. In making this observation, we are not saying that extraordinary and compelling individual circumstances, such as a terminal illness, cannot in particular cases supply the basis for a discretionary sentencing reduction of a mandatory minimum sentence. See Gunn, 980 F.3d at 1179. But we are saying that the discretion conferred by § 3582(c)(1)(A) does not include authority to reduce a mandatory minimum sentence on the basis that the length of the sentence itself constitutes an extraordinary and compelling circumstance warranting a sentencing reduction. And so too do we worry that a contrary conclusion about the scope of the discretion conferred by § 3582(c)(1)(A) would allow the compassionate release statute to operate in a way that creates tension with the principal path and conditions Congress established for federal prisoners to challenge their sentences. That path is embodied in the specific statutory scheme authorizing post-conviction relief in 28 U.S.C. § 2255 and accompanying provisions. See Hrobowski v. United States, 904 F.3d 566, 567–68 (7th Cir. 2018). … Congress's changes to the statutory sentencing scheme in § 924(c) might factor into a district court's individualized determination of whether the § 3553(a) sentencing factors weighed in favor of Eural Black's early release. See Black, 999 F.3d at 1074–75.”

Death Watch: The BOP has reported no additional inmate fatalities, leaving the number of inmate fatalities at 240. Five of these inmates died while on home confinement. Staff fatalities remain at 4.