New Cases Grant Sentence Relief Based upon Not Just COVID-19, but Based upon First Step Act Changes: ACLU Sues BOP

 

First Step Act Relief Transitions from COVID-19 Based to Broader Sentencing Review;

Stimulus Check update; Will ACLU Waseca Class Action Spur DOJ  Accountability?

 

by Derek Gilna

 

            Holiday season is when everything moves slowly. Both the mail and the court systems appear to have come to a dead stop, as vacation days get used to maximize time off of already understaffed clerk's offices.  However, several developments merit attention as we move into 2021 and a change of Presidents.

             Despite DOJ efforts to paper-over the dire situations in the federal prison system by implying that the new vaccines will soon be available, it is simply not true. DOJ has issued no general public statement regarding vaccines, simply  because it will not be given to it anytime soon, and will go the guards first. Prisoners face not only the problem of contracting the disease, but the lack of treatment thereafter. There is simply not the trained staff or resources to do so. However, even the development of a vaccine will not slow FSA releases, as the following cases illustrate.

            Judges are granting relief for a variety of reasons not all related to COVID. Although the highest percentage of FSA releases are based upon the potential mortality for the person contracting COVID, many of the newer decisions are not. People who have minimal or no risk factors, but whom have family that are ill or elderly, or have excessive sentences, have also won relief.    This is an exciting development, as it provides a new form of sentence reduction that does not depend only upon the whims of Congress, the Sentencing Commission, and the President.

             See just two of many examples: United States v. Lyle, 2020 WL 7247780, at *1 (S.D. Tex. Dec. 9, 2020),1,141 months for bank robbery, reduced based on discrepancy of comparative sentences, to 493 months United States v. Allsbrook, 2020 WL 7202577, at *1 (S.D. Ohio Dec. 7, 2020); United States v. Brown, 2020 WL 6482397, at *1 (D.S.C. Nov. 4, 2020) 262 months under 851 and mandatory guidelines for less than 5 grams of crack, sentenced in 2003, initially said not eligible for crack under First Step Act, but 4th Circuit reversed, resentencing to time served.

            Also: United States v. Scott, 2020 WL 2467425, at *3 (D. Md. May 13, 2020)

“Multiple district courts have reasoned that “the First Step Act’s change in how sentences should be calculated when multiple § 924(c) charges are included in the same indictment constitutes an extraordinary and compelling reason under 18 U.S.C. 3582(c)(1)(A). 

See United States v. Owens, No. 97-CR-2546-CAB, ECF 93 at 4 (S.D. Cal. Mar. 20, 2020) (collecting cases). The court agrees with the reasoning of these courts.”

            Additionally, the Fourth Circuit Court of Appeals became the fourth appellate circuit to hold that district courts reviewing an inmate’s motion for sentence reduction under 3582(c)(1)(A) have the independent discretion to determine if there are “extraordinary and compelling reasons” warranting the requested reduction. The Fourth Circuit joins the Second, Sixth, and Seventh Circuits in recognizing district courts’ broad discretion when reviewing requests for sentence reductions and compassionate release.

            Recent counts: Carswell, over 300; FCI Schuylkill, 200; Yazoo, over 150;  FCI Gilmer, 142; Devans, 100+;  Terre Haute, over 100; Pekin. over 100, and many others.

            Although the stimulus finally passed, there is no bill text to refer to for a definitive answer, but it does NOT appear that prisoners and their  spouses are excluded from receiving payments of at least $600 per person.   There is confusion as to how the IRS is sending out the FIRST checks, although prisoners have received funds through the lockbox. The 2020 tax forms, not due out until early 20201, will have a section where you can apply for the first stimulus if you have not already applied, and it does not appear that the November deadline will prevent collecting that check.   This info to be updated..

            What the new Presidential administration? If one is go by campaign promises, there will be new progress on mandatory minimums, and perhaps even a change to the heavily-criticized PATTERN sentence credits. Biden has yet to name an attorney general, so we have no guidance as to priorities there, but whomever it has to contend with the DOJ bureaucracy, not known for its responsiveness to reform.

            One more reason for optimism is the newly-filed ACLU COVID class action against the Waseca women's prison, which has been one of the most egregious offenders of intermixing non-positive and positive prisoners.   It is set for status January 6, 2020, and I plan to be present for that hearing, and will report back.

            In the meantime, do something to make your day and someone else's a little better. Let not your heart be troubled.    Happy New Year.

 

Federal Legal Center,  Derek A Gilna, MERJ, JD, Director,

113 McHenry Rd. #173, Buffalo Grove, IL   60089,

dgilna1948@yahoo.com; "Derek Gilna's Criminal Justice Blog."

 

 

 

Stimulus Check Agreement Reached in Congress: Too Early to say if Prisoners, Families, Will Benefit

 

No, Ir's Not Your Imagination: Nationwide Prisoner COVID Numbers Reach New High;

Some Good News: New Stimulus Passed; First Step Act Reach Expanded in Sixth Circuit

 

by Derek Gilna

 

            As the nation prepares for a most unusual holiday season, there is some good news to report.   Congress agreed on a new Stimulus bill which will include direct $600 payments to individuals.  I will report on the exact language when  available, and whether prisoners will also benefit,  and how you can still get the first stimulus payment.

            New COVID cases in the nation's prisons this week reached their highest level since testing began in the spring, far outstripping previous peaks in April and August. No federal facility has been spared, as hot spots have flared, abated, and flared again, with DOJ continuing to undercount cases. The pandemic has laid bare the utter inability of the federal prison system to fulfill its most basic responsibility of protecting those over whom it wields the power of life or death, and that often coldly denies  basic medical care. Whatever its virus management "plan," was, staff was never trained to execute it.

            How does one deal with this onslaught of indignities and suffering? We know that suffering produces perseverance, perseverance, character, and character, hope, and rewards persistence. Grace and forgiveness arm you mentally to move forward..

             Of the 10,000 federal compassionate release requests, wardens denied all but 156 (2%) of them. District courts, after an initial spurt of relief, have been so swamped with filings that most struggle to even docket them in a timely fashion. Nonetheless, there continues to be relief granted, and a slow trickle of DOJ CARES releases, and an unprecedented flood of mainstream media interest in prisoner conditions, which have focused on the immorality and inhumanity of current conditions.

            FMC Lexington, all units, is one of the new hotspots, with cases at the locked-down women's unit,  over 300 at the men's unit, and over 20 deaths; Lompoc, previously criticized in a DOJ IG report, has flared-up, with over 65 cases, and many hospitalizations; Devans, over 65; Ft. Dix, still in the 100's; Terre Haute, over 265, including Death Row; Rochester, 121; Schuylkill, 129 inmates. Yazoo City continues to get transfers from hot-spots, with over 35 positives, and at least one death. .  This only scratches the surface (apologies to those places not included), as even "recovered" individuals suffer with residual breathing issues and limited medical care.

            Biden still has not put forth an AG candidate, although Merrick Garland, Doug Jones, Deval Patrick, and Sally Yates have been mentioned. Since all of the other cabinet picks so far have generally been non-progressives, will he appoint an "intuitionalists," like Judge Garland, former prosecutors like Jones (and former senator, or former Acting AG Yates, or a Patrick (a former civil-rights lawyer, and former Governor of Massachusetts)? Whomever it is, it will be an indication of whether Biden will keep his promise to eliminate mandatory minimums and to cut the prison population.

            A Sixth Circuit panel  in US v. Henry, No. 19-2445 (6th Cir. Dec 18, 2020), ruled that FSA's reduced sentencing terms are applicable in resentencing: "the legislative history of the First Step Act demonstrates Congress’s intent to remedy overly punitive mandatory-minimum sentences faced by defendants, including defendants resentenced after the Act’s enactment."  Will Congress extend that relief retroactively? Are prisoner Pell grants on the immediate horizon.?  

            Fear not, and Let not your heart be troubled.

 

Federal Legal Center, Derek A Gilna, JD, MERJ, Director,

113 McHenry Rd., #173, Buffalo Grove, IL   60089 (and Indiana)

dgilna1948@yahoo.com (alternate:dagilna1948@yahoo.com), "Derek Gilna's C J Blog."

 

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Bureau of Prisons' "Herd Immunity" Approach to Federal Prison Covid Crisis Is Only Explanation for Rising Infection Counts

 Discredited "Herd Immunity" Theory Apparently Guides DOJ Prison COVID Policy; Prisoners Low on List for Vaccine; Sweeping Marijuana Reforms on Horizon

 

by Derek Gilna

 

            Poor central office planning, poor staff training, discredited theories, and ignorance are on display every day in the federal prison system, but it took COVID-19 to bring this to the public's attention, as rising prison cases spill over to surrounding communities. A deadly combination of the above factors, along with implementation of flawed "herd immunity" theories, championed by former presidential adviser Dr. Scott Atlas (and others), have spread illness, suffering and in some cases, death to thousands. Unfortunately, it is unlikely that federal prisoners will see any vaccines until Summer.

             It will likely take years of investigation and hundreds of lawsuits to uncover all of the facts, but it is clear that at least in federal prisons, there was a policy of mixing positive and non-positive individuals, with clear "deliberate indifference" to the long-term health effects even upon "recovered" patients, not to mention the effects on the elderly and chronically ill. Document what you have seen and experienced.

            Give AG Barr some credit: his memos strongly recommended aggressive use of the release tools DOJ already possessed. However, he had only limited influence on the career DOJ prison officials, who know he leaves office soon. Honest career officials bluntly state that there will be no more CARES releases. It is up to Congress, the Sentencing Comm.,  and the President to change the system with bold initiatives.

            Total DOJ virus numbers are up. FPC Duluth, has the highest percentage of infected, with over 200 out of a population of less than 300.   Other counts: FCI-Englewood, 540; .FMC, Lexington, over 300;  Beaumont Low, 303; Loretto, over 300;  Ft. Dix, 268; Philadelphia, 200+; Ashland, 200+;Yazoo City, 200+; Cumberland, 200; Butner, 150+; Schuylkill, 129;. Rochester, 111; Allenwood low, 20; Carswell, 20+.

            In more positive news, H.R. 3884, which passed the House, would federally decriminalize cannabis (marijuana), expunge the records of people convicted of federal cannabis offenses, and require resentencing of some federal prisoners. This bill, if and when it becomes law, would result in thousands of time-served releases of marijuana prisoners after required resentencings, as well as additional funding for programming.

Thanks to COVID, the concept of restorative justice is gaining wider acceptance.

            The 4th Circuit became the fourth circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A after FSA. US v. McCoy, 20-6821(Dec. 2, 2020), following Zullo from the 2d Circuit. The 7th Circuit reversed and remanded denial of a CR: "Until...§1B1.13 is amended,...the Guidelines...lack an 'applicable' policy statement covering prisoner-initiated applications for compassionate release...judges must operate under the statutory criteria—extraordinary and compelling reasons." US v Gunn, 20-1959, 11-20-20. Also, potentially significant is Wright v. Beck, 19-55084, (9th Cir. 2020), in which dismissal of a 1983 action in a firearms seizure was reversed, and based upon a Monell failure-to-train, and on due process and 4th Amendment grounds.

            Be not afraid, and let not your heart be troubled.

 

Federal Legal Center, Derek A Gilna, JD, MARJ, Director

113 McHenry Rd., #173, Buffalo Grove, IL 60089, and Indiana, dgilna1948@yahoo.com, 

"Derek Gilna's Criminal Justice Blog" on Google Blogspot.

BOP and DOJ COVID-19 Ineptitude and Dysfunction Will Have to be Addressed by President Biden's Criminal Justice Team

 

DOJ COVID Confusion Won't End Under Biden; Vaccine Rumors Are Only That

 

by Derek Gilna

 

            Two headlines in the last week relating to prisoners caught my eye.   First, AG Barr is hinting that he will resign before the end of Trump's term,  stating that he "has done everything that he wanted to do as AG," and there's no reason to stick around. That would explain Barr's disinterest in enforcing his own  COVID memo encouraging prisoner releases.  

            The second headline concerns the availability of the COVID-19 vaccines for prisoners.   Contrary to rumor (misinformation), don't expect those to find their way into federal prisons anytime soon. When it comes, guards will get it first (Source: AP), prisoners, in late 2021.

            Biden's criminal justice advisors in Congress, including Corey Booker, are well aware of DOJ's ineptitude in its virus response, as shown by this week's House Oversight Committee grilling of the Director.  I wish Biden the best of luck in unraveling the dysfunctional prison bureaucracy and holding it and the US Marshals responsible for flying infected prisoners all over the country. It won't be easy. According to guard union complaints, staff is burning out due to augmentation, illness, and stress:   "We have nurses working in a housing unit.  How do you justify reassigning a nurse?"  If they're in the housing unit, they're not handling sick call or treating COVID patients.

            Biden can be expected to re-task the U.S. Sentencing Commission to review current guidelines, and issuing formal guidance to reduce unreasonable long sentences and promote rehabilitation. This, working with FSA, should also reduce prisoner counts.

            Current infection counts: Ft. Dix, 750+; FPC Duluth, 200+, our of 293' McKean, 75; Ashland, 261, 5 hospitalized, 1 death; Terre Haute, 470; Rochester, 110; Carswell, 80+; Lexington, 5 of 9 units locked, 330 +; McDowell 120, some in hospital, perhaps 4 on ventilators; Pekin, men 80+, women, 120; and Forrest City, 100, with reinfections;

            According to a new study, "Patients from ethnic minority groups are disproportionately affected by Coronavirus disease (COVID-19). We performed a systematic review and meta-analysis to explore the relationship between ethnicity and clinical outcomes in COVID-19." Outcomes, "were searched up to 31st August 2020,  for studies reporting COVID-19 data disaggregated by ethnicity. Outcomes were: risk of infection; intensive therapy unit (ITU) admission and death." https://www.thelancet.com/journals/eclinm/home.

            "COVID-19 is tied to deadly brain inflammation in some patients....The study found a concerning increase in patients with a rare and sometimes fatal neurological condition called ADEM. COVID-19 may cause dangerous neurological problems, including delirium, brain inflammation, nerve damage or stroke," it said. www.livescience.com.

            To date, only 4% of prosecutors in the U.S. who were involved in wrongful conviction cases tainted by prosecutorial misconduct have faced any kind of personal or professional discipline, according to the National Registry of Exonerations, of the Innocence Project..  And only a handful of these prosecutors faced serious disciplinary action, such as disbarment from the practice of law, as opposed to a brief suspension or “reprimand” by the state bar.

            In  US v Clark, 19-7046, (10th Cir. 11th Cir. 11-17-20), vacated an Indian country sentence for assault, finding that there was an insufficient explanation of the reasons for the imposed sentence. In U.S. v. Senter, 18-11627, (11th Cir. 11-13-20), the court granted a COA to review denial of a 2255, and agreed with defendant that "he no longer qualified as an (ACCA) in light of Johnson..., because his...1998 Alabama conviction for attempted first-degree robbery has no state law elements."

            Let not your heart be troubled.

Federal Legal Center, Derek A. Gilna, JD, MERJ, Director,

113 McHenry Rd. #173, Buffalo Grove, IL   60089, (and Indiana).

dgilna1948@yahoo.com; "Derek Gilna's Criminal Justice Blog."

 

 

COVID Crisis in BOP Puts New Emphasis on Clemency Process; Biden Promises Reform

 

"Will He or Won't He?" Multiple Election Lawsuits Might Delay Pardons, Commutations

 

by Derek Gilna

 

            By all estimates there are at least 13,000 pending commutation petitions either at DOJ or at the White House, awaiting presidential action, but there is concern that the pending lawsuits contesting vote results are slowing the process. When Jared Kushner returns from negotiations in the Middle East in the next several days, the logjam will break. It would be a good finish to 4 years of progress, and pressure Biden to top it.

            Biden has pledged to allocate billions of dollars of funding toward a grant program aimed at promoting crime prevention within state and local governments to reduce the source of crime: poor neighborhoods, child abuse, and limited education access, according to the Biden-Harris Transition plan. Biden says he could reduce the U.S. prison population by more than 50% by reducing or elimination MM's,  and  pledged to invest billions of dollars in a grant program aimed at promoting crime prevention within state and local governments.

            Ft. Dix, the focus of numerous articles, Congressional inquiry, and television coverage, has the dubious distinction of having the most "confirmed" COVID-19 cases, 232, (with perhaps hundreds more unconfirmed) of any federal facility, although the DOJ's inability or unwillingness to universally test makes me think that there are many that have similar numbers. There is also serious scientific doubt as to the health status of those who have "recovered," since many continue to experience serious side effects. It is clear that DOJ has no plan to eradicate the virus, and will not be able to for many months, especially since prisoners are unlikely to even see the vaccine until well into 2021.

            Although in terms of raw numbers, the situation at FPC Duluth may not seem high, it is a microcosm of poor DOJ planning and treatment failures. Duluth, one of the few camps not attached to a higher-security facility, is the northern-most federal prison, in an area of the country untouched by COVID-19 for many months. Lulled into a false sense of security, DOJ bragged in court filings that it was "managing" the virus, recent transfers, sloppy procedures, and botched "quarantines"  has resulted in infected prisoners sleeping on cots in an unheated gym, while staff moves from infected to uninfected dorms without concern for DOJ protocols.  What the numbers are is anyone's guess, but out of a population of 500, it could also be as high as 200, an avoidable crisis.

            Nearly 25% of all inmate cases and 30% of the staff cases have been reported within just the last month. Weekly case report: Alderson, 20 and climbing;  McDowell, over 29; Gilmer, 100+; Ashland, over 181; FMC Lexington and Atwood, 317 (12 deaths); Forrest City, 50+; Aliceville, 100 plus; Ashland, 200+; Duluth, 100+; Hazelton, 10+. So far, heavy DOJ censorship on virus news has only slowed, not ended reports.

            In U.S. v. Green, 17-10346, 11-25-20,  the 11th Circuit found that RICO conspiracy "does not qualify as a crime of violence under 924cm and vacate...and remand." The 7th Circuit slapped down DOJ's argument that the old regulations and SC statements on CR still apply, citing the 2d Circuits Booker decision to follow only the "extraordinary and compelling reason" in deciding whether to grant relief.

            Let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, MARJ, Director

113 McHenry Rd. #173, Buffalo Grove, IL   60089 (And Indiana)

dgilna1948@yahoo.com, blogging at "Derek Gilna's Criminal Justice Blog."

 

ACLU Files Class Action Against Bureau of Prisons and FMC Butner for Continued Bungling of COVID Response

 

Class Action Against FMC Butner Moves Forward, Alleges Deliberate Indifference

 

by Derek Gilna

 

            Like you, I am intrigued by life's mysteries. Why is the recipe for Kentucky Fried Chicken a well-kept secret, when countless tell-all books have been generated by former White House staffers about supposedly private conversations with the President?  How does DOJ manage to locate and serve expired foods when this country is the world's  largest food exporter? How does a certain aged and declining Presidential candidate who did no campaigning garner 15 million more votes than his (still) wildly popular former boss (Obama) when reelected in 2012? Why is it so hard for DOJ to properly medically classify, competently treat, or release aged, disabled, non-violent offenders who have served high percentages of their sentences and who have programmed non-stop?

            For now, I will just stick to the facts that most media outlets do not seem particularly interested in. The ACLU in late October filed a comprehensive and well-documented class action against FMC Butner, which lays out in excruciating detail the DOJ's failure at its primary MEDICAL center to properly treat or release health-compromised prisoners in the face of COVID-19 infestation. (This lawsuit will be extensively covered in my article in Prison Legal News.)   There are at least 160 active COVID cases, and probably more that are undiagnosed, but DOJ continues to avoid mass testing, when in the US more than 1 million are tested daily. Butner has also distinguished itself with virtually NO CARES Act releases, and no approvals of initial compassionate release applications.  Hallinan, et al.  v. Scarantino, et al., 2020-ct-3333, U.S.D.C. for the E.D. of North Carolina, October 26, 2020.

            Current COVID counts: Ft Dix, 214; FMC Rochester, 110; Waseca, over 200; Milan, over 100; Pollack, 25-30; Ashland, over half, with local hospitals at max capacity; Greenville, 700; Duluth, 125; FMC Lexington camp, 292,  9 death; Gilmer, 10; Yazoo City, over 50; Tallahassee, over 50; : Pekin well over 100.  The DOJ Inspector General on November 17 cited Oakdale and Pollock for failure to prevent and contain the virus.           Forrest City, hit hard earlier and with current cases, is reducing the number of prisoners in its overcrowded and mold-infested facilities. However, inter prison transfers continue to fuel outbreak in DOJ facilities across the county. Have your families write or call your Congressmen or Senators, a strategy which has focused attention on Ft. Dix, and pass along the fact that DOJ for a time appeared to have a strategy of deliberately infecting their helpless charges to build (or test)  "herd immunity."

            If you already filed and were denied for CR, especially if the judge cited the lack of prior infections at your facility, or you were already infected,  you are eligible to file once again, citing the new outbreaks, and scientific evidence that shows that those who have "recovered" will have live-long side-effects and likely a higher death rate.

            The good news is that all of Joe Biden's potential candidates for Attorney General, who is charge of the federal prison system, are committed to continuing criminal justice reforms, although Senator Corey Booker, with no prior ties to the criminal justice bureaucracy to weigh him down, would be the preferred candidate.

            Fear not, and let not your heart be troubled.

 

Derek A. Gilna, JD, MARJ, Director, Federal Legal Center, Inc.

113 McHenry Rd., #173, Buffalo Grove, IL   60089 (and Indiana)

dgilna1948@yahoo.com (backup: dagilna1948@yahoo.com),

Blog at "Derek Gilna's Criminal Justice Blog."

             

Congress and the Media Awaken from Months-Long Slumber Over BOP's Deliberate Indifference in COVID Response

 

DOJ COVID-19 Response Receives Intense Post-Election Scrutiny; Deliberate Indifference, Anyone?

 

by Derek Gilna

 

            Anyone who still harbors the illusion that government is the answer to all of your problems need only turn to the incredible incompetence exhibited in the DOJ's response to the COVID-19 crisis in federal prisons.   Already cited by the its own Inspector General for failure to provide adequate, well-trained prison medical staff nationwide, it has resorted to "Treatment by Press Release," full of self-congratulations on its feeble response, rising to a level of misrepresentation envied by the Chinese Communist Party apparatus, and dutifully regurgitated by asst. U.S. attorneys until very recently.

            The mainstream media finally has awakened to this ongoing crisis and nowhere is the spotlight brighter than at Ft Dix. Senator Corey Booker, mentioned as possible AG in a Biden administration (much more on that next week), has sent a scathing letter to DOJ. In it, he demanded that all prisoners be tested and cease all further transfers, noting DOJ "does not have an effective plan to ensure COVID-19 positive inmates are not transferred between facilities." The rest of the media now senses blood in the water, and even judges have noticed. A federal judge has ordered U.S. attorneys for FCI Fort Dix to provide details on how the prison has mitigated the spread of  cases there top 200.

            Unfortunately, Ft. Dix is not alone in its misery: Ashland, 20, Gilmer, 107, Duluth, 100, Pekin, both men and women, over 200, FMC Rochester, over 100, Forrest City, over 50,  Waseca, 100,  with many others unable to report due to apparent censorship of emails and reg. mail. The misguided attempts to infect everyone continues.

            Biden has pledged to allocate billions of dollars of funding toward a grant program aimed at promoting crime prevention within state and local governments that get to the root of the source of crime: poor neighborhoods, child abuse, and limited education access, according to the Biden-Harris Transition plan. “After incarcerated individuals serve their time, they should have the opportunity to fully reintegrate into society, earn a good living, and participate in our democracy as our fellow citizens,” Biden’s campaign website states.

            Compassionate releases continue: United States v. Grimm, 2020 WL 6165286 (D. Nev. Oct. 21, 2020),14 years for mortgage fraud, Lupus, diagnosed after court ordered it. United States v. Owens, 2020 WL 6162783, at *1 (S.D.W. Va. Oct. 21, 2020),130 months for crack distribution, reduced to 110 months, has served 92 months,FCI Allenwood Medium, Hypertension, abdominal hernia, missing left kidney. Frushour v. United States, 2020 WL 4734907, at *1 (E.D. Mich. Aug. 14, 2020), Defendant’s projected release date is July 17, 2024, sentenced to 108 months in 2016 for child porn, FCI Milan,78 years old, diabetes, heart murmur, hyperlipidemia, skin cancer, morbid obesity. US v. Nazario-Montijo, 3:17-cr-00278-JAG, ECF 273 (D.P.R. Sep. 17, 2020.) granting reduction in sentence where defendant was sentenced pre-COVID to 24 months pursuant to a binding plea agreement, his self-surrender date extended, obesity and mental health conditions that could be exacerbated by BOP infection mitigation efforts.

            Fear not, and Let not your heart be troubled.

Federal Legal Center, Inc., Derek A Gilna, JD, MRJ, Director,

113 McHenry Rd., #173, Buffalo Grove, Ill (and IN.)

dgilna1948@yahoo.com, and "Derek Gilna's Criminal Justice Blog."

Prison COVID Nightmare Continues; Democrats Are Now In a Position To End That and Advance Justice Reform . Will They Take It?

 

Muddled Election Results, Probability of Divided Government Boosts Justice Reform

 

by Derek Gilna

 

            Although Joe Biden appears to have won the Presidency based upon current projections, pending several legal challenges, a Biden presidency would most certainly advance criminal justice reform in many ways. Progressive platforms call for the abolishment of private prisons and mandatory minimums, liberalizing marijuana laws      (perhaps retroactively) , and reining in prosecutorial overreach.    Of course this requires some Congressional approval, but there will be no step backwards. Unfortunately, the prospect of further systemic reform of the FBI and DOJ, and its ugly stepsister, the federal prison system, is uncertain, I still expect clemencies to ramp up shortly.

            The latter is of prime significance, given the upward spike in reinfections of prisoners already in a fragile state from years of incarceration and indifferent medical care. On that front, there is only very bad news. Leading the way is Ft. Dix, which has tallied at least one new death (or more), well over 500 infections, and no apparent plan to stem the tide, except a misguided attempt to infect everyone, contrary to CDC guidelines.

            Waseca is also yet another laboratory for forced infections, with well over 75% of all purposefully infected, with at least one likely death, hard to verify since DOJ has taken advantage of election mania to bury the bad news. Duluth has over 20 cases, and FMC Rochester has over 100 cases and many staff; FMC Springfield, has 160 cases. Lompoc has many reinfections, as has Forrest City. Unfortunately, at Bryan, Texas (and other locations), staff have begun threatening "shots" for those sharing the truth with friends, family, and advocates.   Unjustified blocking of emails to advocates, lawyers, and even the ACLU is all part of the bold "nothing to see here" strategy. DOJ continues to underreport case totals, and suppress information on new deaths.

            On a more positive note, courts continue to grant compassionate releases (CR) in virtually every jurisdiction, including repeat filings when new infections began to peak. In United States v. Baylor, 2020 WL 5970679, at *1 (D.D.C. Oct. 8, 2020), the court released an Alderson prisoner suffering from chronic kidney disease and hypertension, whose initial petition was denied because there were no cases at the time of her initial filing. The CDC has not only expanded the categories qualifying for relief, but also the risk to vulnerable individuals of reinfections, when follow up care is nonexistent.

            The court granted CR in United States v. Sain, 2020 WL 5906167, at *1 (E.D. Mich. Oct. 6, 2020) to a prisoner with chronic kidney disease, and asthma, and provided this interesting quote when the government objected to the release:  "The government asks the Court to view Sain in the same light as if it was 2007. But Sain has not been in a time bubble for nearly 13 years, and Pepper v. United States, 562 U.S. 476, 490-93 (2011), allows the Court to consider post-sentencing rehabilitation efforts in re-sentencing. (He) has already served ....13 years in prison – a substantial punishment...this amounts to over 73 percent of his sentence...longer than...his co-conspirator’s sentences."

            Be not afraid and let not your heart be troubled.

 

Federal Legal Center, Inc., Derek A. Gilna, JD, MRJ, Director

113 McHenry Rd. #173 Buffalo Grove, IL    60089 (And Indiana)

dgilna1948@yahoo.com, blogging at "Derek Gilna's Criminal Justice Blog."

 

BOP Still Clueless on How to Respond as Second Wave of COVID-19 Infections Arrives

 

COVID Second Wave Rolls Over Federal Prison System;  More CR Grants Made

 

by Derek Gilna

 

            According to a new study, prisoners are 5.5 times more likely to get Covid-19 and three times more likely to die from it, according to a study from researchers at Johns Hopkins and UCLA published today in the Journal of the American Medical Association.  “COVID-19 in US prisons is unlikely to be contained without implementation of more effective infection control.” In facilities with outbreaks where prisoners were tested en masse, infection rate exceeded 65% in multiple cases.

            Ft. Dix has over 165 confirmed cases, and at least one death. Waseca has over 85% infected, with poor treatment from short staff. The Bryan, Texas camp has many individuals infected. Big Spring has over 100, FCI Bastrop, 90, FCI Pekin, over 100, FPC Duluth, over 10, Mariana, 46, Coleman over 100,  Springfield, MO, over 100, Alderson, over 11 new, from transfers, MCC Chicago, 142. Elkton, Forrest City, Butner, Carswell, and Oakdale are starting to see re-infections of previously "recovered" individuals. A study says that lockdowns are contributing to declining health of at risk sick prisoners.  

            The U.S. Supreme Court will hear argument on U.S. v. Borden, 19-1512, out of the 6th Circuit, asking whether the "use of force" clause in ACCA encompasses crimes with a mens rea of mere recklessness. Statistics show that FSA reductions via 404 are having an effect: 3,363 offenders were granted a sentence reduction, 65.6% were assigned to the highest Criminal History Category (VI),  and 56.3% were CO's.

Offenders received an average decrease of 71 months (24.9%) I can assist with these.

            Another study shows that the poor representation you got may be as a result of your attorney's alcohol problem. Nearly 70% of lawyers are likely to have an alcohol problem at some time during their career and finding that while 9% of U.S. adults meet the criteria for alcohol abuse or dependency, 15-18% of lawyers were problem drinkers. Something to consider if you consider  a 2255 habeas for inadequate representation.

            In the circuits, there were a host of positive CR decisions. A prisoner with chronic kidney disease, and hypertension, gained relief. "The extraordinary and compelling circumstances presented by the pandemic have empowered the Court to revisit the sentence it imposed....the Court will exercise its discretionary authority to reduce Johnson’s sentence to 300 months...The fact a defendant, if sentenced today, would receive a drastically lower sentence for the same conduct has been found by several courts to constitute “extraordinary and compelling” circumstances justifying sentence reduction under § 3582(c)(1)(A)." United States v. Johnson, 2020 WL 6063733, at *5 (D. Md. Oct. 14, 2020).

            A Ft. Dix prisoner was granted CR, based upon an  ECG marked “abnormal,” asthma, sleep apnea, pre-diabetes, obesity, chronic kidney disease and hypertension.  “In fact, the Court is somewhat skeptical of the Government’s confidence in BOP containment efforts. The BOP did not institute a policy requiring staff to wear face masks until August 27, 2020, and even that guidance contemplates religious exemptions, medical exemptions, and outright refusals to comply with the mask mandate.” United States v. Brown, 2020 WL 5801494, at *1 (E.D. Pa. Sept. 29, 2020)

            Let not your heart be troubled, and be not afraid.

Derek A. Gilna, MRJ, JD, Director, Federal Legal Center, Inc.,

113 McHenry Rd., #173, Buffalo Grove, ILL  60089 (Also Indiana)

dgilna1948@yahoo.com, Blogging at "Derek Gilna's Criminal Justice Blog"

 

 

Federal Prisoner Relief Is Coming No Matter Who is Elected President

 

No Question that 2020 and 2021 Will See More Prisoner Relief; Appellate Update

 

by Derek Gilna

 

            No matter the result of  the election (which may not be settled until the U.S. Supreme Court rules on vote challenges after Justice Barrett is seated), the balance of 2020 and 2021 will see more prisoner relief, at least on the scale of First Step. Only the timing is in question.

            Regular readers of this newsletter know that I teased a development for this month, which is almost over.    The reason for this was the up tick in activity in both White House and DOJ clemency offices, and some of the feedback from readers, who have also noticed the change. In the last debate, the President touted First Step  releases, and high profile clemencies, whereas Biden retorted that Obama's (condition-filled) clemencies were more numerous.   The President (with all major police endorsements in his pocket polling at record levels in the Black community) smiled a knowing smile, but uncharacteristically said nothing.  Win or lose, he will not miss a chance to again outdo, upstage, (or shame) Obama by a substantial grant of Presidential clemencies and pardons before January 20, 2021, blowing apart Democratic dominance of Black support.

            "Crime Bill" Biden, whose most ardent supporters are now left wing police  and prison abolitionists, is already on record  favoring the retroactive abolition of mandatory minimums, , as well as a "Second Step," which would result in well over 10,000 federal prison releases. What you would not see with a President Biden is DOJ or FBI reform. If reelected, Trump will fire the current FBI Director, and complete his DOJ restructuring, reining in glory-seeking federal prosecutors who have caused untold human misery.

            Part of that restructuring would include the federal prison system, which continues to apparently purposely spread COVID-19 infections, which spiked in  the past week. Virtually every prison has a serious outbreak, and at least one quarantined unit. Transfer institutions like Thomson, McDowell,  and Ft. Dix have been especially hard hit and at Alderson all transferees tested positive upon arrival.  Other institutions like Forrest City, Pekin, and Waseca, have seen guard shortages when many called in sick due to hazardous working conditions. Carswell and Butner have new cases, some of which are reinfection. Still other wardens are defying AG Barr's CARES release guidelines ,and complaints from Congressmen,  despite the fact that the DOJ IG has cited the federal prison system in both Lompoc and other locations for inadequate medical care.

            In the circuits, in US v. Firebaugh, 16-20341, USDC-SD-FL, (June 1, 2020), the Government conceded that on May 18, 2020" DOJ issued internal guidance which directs that the Government concede that Defendants who have certain CDC risk factors, (lists them), can establish 'extraordinary and compelling reasons,'  a remarkable development, leaving only the "danger to the community if released" roadblock.

            In US v Wilson, 19-3394, (6th Cir. 10-23-20), the court vacated a 922g1 sentence, where an Ohio robbery was found to not be an ACCA predicate. In the white collar case of US v. Hazelwood, 18-6023 (6th Cir. 10-14, 20) the court reversed  all conviction when the prosecution violated FR 403 by introducing inflammatory statements unrelated to the case. In  US v. Alhaggai, 19-10092, (9th Cir. 10-22-20) the court vacated a terrorism sentence, where the district court erroneously permitted a terror enhancement when the government prosecuted based upon inflammatory statements on social media without making a finding that there was intent to commit an act of terrorism.

            I would be pleased to review your case for possible FSA relief, Compassionate Release, or a 2555 habeas for inadequate representation of counsel, at no charge.

Let not your heart be troubled.

Federal Legal Center, Inc.  Derek A Gilna, JD, MRJ, Director

113 McHenry Rd. #173, Buffalo Grove, IL   600689 (and Indiana)

dgilna1948@yahoo.com; blogging at "Derek Gilna's Criminal Justice Blog."

           

           

 

 

Bureau of Prisons, Sensitive to Rising Criticism, "Mistakenly" Deletes, then Reinstates Corrlinks for Two Advocate Organizations

 

"The Empire Strikes Back;" Advocate and Attorney Emails Abruptly Halted, But Reinstated

 

by Derek Gilna

 

            In what was termed by DOJ a "mistake," two prominent prisoner-information websites were abruptly kicked off Corrlinks without prior notice, but later restored.  Those individuals wishing to reestablish contact will apparently have to resend invitations to those organizations, as DOJ claims that it cannot (or will not) do so. (Note our alternate email address at the bottom of the newsletter and save it. for reference.)

            Prisoners and their families continue to have difficulty navigating the IRS website to file a 2019 online 1040 tax return to establish their eligibility of the Sprint 2020 stimulus payment.  I recommend filing a paper return, showing $1 in income for 2019, and listing an address of family or trusted friend. It may take longer, but should work.

            Despite the fact that COVID-19 cases are dropping across the country( with mostly younger people with low mortality rates getting infected), levels in federal jails and holding facilities continue to hold steady, and in some prisons, increase rapidly.   The reason is clear; DOJ and the U.S. Marshals continue to transport COVID-positive prisoners, who in turn fuel new outbreaks at their destinations. One of its favorite holding facilities, Grady County, Oklahoma, has spread the virus system-wide. Intercept.com.

             The evidence would tend to show that DOJ is attempting to create "herd immunity," by infecting as many as possible, and accepting the death of the already sick or medically-vulnerable, to bring the virus under control. According to the Wall Street Journal, 10-19-20, Dr. Anthony Fauci called the strategy flawed. "Never in the history of public health has herd immunity been used as a strategy for responding to an outbreak, let alone a pandemic.   It is scientifically and ethically problematic," said World Health Organization director Tedros Ghebreyesus on October 12, 2020. DOJ still does not test until a prisoner shows visible symptoms, guaranteeing the continued spread of the virus.

The problem is that most prisons are not providing ANY medical care due to the virus.

            In Carswell, it is next to impossible to wash clothes. At FMC Lexington, 91 quarantined, heading to Yazoo , with 200 to follow. In places like Waseca, Coleman, and other prisons with Unicor factories, have shown sharp increases in cases, since social distancing is not impossible and prisoners lack proper protection and cleaning supplies. Elkton transferred prisoners to Ft Dix and a quarter were found to be infected.

            In the 11th Circuit, the court has vacated and remanded the dismissal of  a FSA and CR filing to district court, with instructions: "because the district court addressed only a claim for relief under § 404(b) of the First Step Act ...and did not address Griffin’s claim for compassionate release under § 3582(c)(1)(A), we vacate the district court’s order denying relief and remand to allow the district court to consider (the) compassionate-release claim." US v Griffin, 19-14287, (11th Cir. 2020).

            In US v Taylor, 19-7616 (4th Cir. 10-14-20), the court remanded a 924c matter for resentencing, finding that "the elements of attempted Hobbs Act robbery do not invariable require the use, attempted us, or threatened use of physical force.'" In U.S. v. Glispie, 19-1224, (7th Cir. 10-14-20), the court vacated and remanding, finding that "previous conviction under the Ill. res. burglary stat. cannot be use to enhance (a) sentence under the ACCA."

            Although there is no question that Compassionate Release and Home Confinement issues are taking top billing, do not overlook 2255 inadequate representation or FSA matters, which are also available. Let not your heart be troubled.

 

Federal Legal Center, Inc.

Derek A. Gilna, JD, MRJ, Director

113 McHenry Rd.   #173

Buffalo Grove, IL   60089

dgilna1948@yahoo.com (alternate: dagilna1948@yahoo.com) .

Blogging at "Derek Gilna's Criminal Justice Blog."

Stimulus Checks for Prisoners Cleared by Federal Court Injunction; BOP Continues to Botch Pandemic Response

 

Stimulus Payment Applications Now Due 11-21-20; Paper Tax Returns Advisable

 

by Derek Gilna

 

            November 21, 2020 appears to be the new deadline for applications for 2019 non-filing prisoners to legally apply for and receive the $1200 stimulus checks. Today it appears the most reliable method of filing is to use a family member or close friend's address to file  a paper return.   Prisons are getting the word to provide these paper forms but it is ultimately up to you to get it done. My best guess is that Treasury, who directly issues the checks, will NOT hold back any sums due for restitution or child support.

            As expected, the transport of prisoners not tested for COVID-19 is spurring a steady increase in infection rates within the federal prison system.  Prisons like Waseca, Alderson, Rochester, Pekin, and others, are experiencing steady increases in cases, with at least one prisoner in Pekin, where multiple units are locked down, on a hospital ventilator, indicating that he received zero treatment before falling critically ill. Elkton, Pollock, Oakdale, Carswell, and Butner, where the virus has allegedly peaked, are now full of "recovered," chronically-ill prisoners whose life expectancy is more problematic.

            The DOJ bureaucracy is currently in full cover-up mode also, with individual prisons underreporting cases to national office, and stonewalling local media understandably concerned about health threats to surrounding communities. Sadly, Congressional members, more concerned about keeping their cushy jobs than in helping prisoners, are doing little to stop this. However, one man also up for reelection and his staff know EXACTLY what is going on and only waiting for the appropriate moment.

            In the midst of this turmoil and confusion, prisoners ARE still being released for Compassionate Release (CR), IF they have been denied by their warden, and have medical proof. We can help. Although CARES releases are tapering off, nothing like a well-drafted CR (which requires a letter from the institution regarding medical, major discipline,  and release location) to help getting more than a few overlooked prisoners CARES consideration and release. (CARES denials are not judicially reviewable.)

            In the circuits, the USDC for the Northern District of Illinois, granted a 2241 petition on Mathis grounds, vacated a life term, and ordered resentencing. Holmes v. Hudson, 19C 50154, 9-15-20. In the USDC for the D of New Jersey, a prisoner at Ft Dix won relief, under FSA, by successfully arguing that he was entitled to programming credits NOW, not in 2021, destroying DOJ arguments to the contrary. Goodman v. Ortiz, 20-7582, 8-25-20.

            In a no-contact SO case, the 5th Circuit overturned a blanket prohibition of post-release internet use, ruling that such conditions must be "narrowly tailored either by scope or by duration." US  v. Bacerra, 19-50447, 10-8-20. In the 10th Cir., the court ordered a FSA resentencing after finding that a "district court  (must) at least consider (a) claim that sentencing him as a CO would be error given subsequent decisional law that clarified the related CO provisions at issue." US v. Brown, 19-7039, 9-9-20.

            Let not your heart be troubled.

 

Federal Legal Center, Inc., Derek A. Gilna, JD, Director,

113 McHenry Rd. #173, Buffalo Grove, IL   60089 (Also in Indiana)

dgilna1948@yahoo.com, Blogging at "Derek Gilna's Criminal Justice" Blog.

Stimulus Checks Now Available to the Incarcerated; Waseca, Alderson, Sandstone, and Other Prisons See Increase in Cases Due to Prisoner Transfers by U.S. Marshal;

 

Marshal's Prisoner Transfers Fuels Virus Spikes; Prisoners CAN Receive Stimulus Checks: Federal Judge Orders Feds to Pay Up; Deadline to Apply is October 15

 

by Derek Gilna

 

            October saw continued bad COVID-19 news, but there was a positive development.   A US district court judge has certified a class action on behalf of all prisoners and ordered that the federal government must permit incarcerated prisoners and their families to receive the same $1200 stimulus checks that all should have received in the Spring. The late September ruling means that prisoners and their families can reapply through the IRS website, but MUST do so by October 15, especially if they did not file a tax return in the past two years.

            There is clear evidence that the DOJ resumption of federal prisoner transfers by the US Marshal's service is fueling a new spike in prisoner COVID-19 infections.   Although DOJ on its website in court filing brags about its "plan" to combat the virus, top officials are either ignorant of the precipitous increase in cases, or just don't care. Virtually all federal prisons are short staffed, as fearful employees stay home, or self-quarantine after virus exposure.

            COVID-19 has further compromised deficient prison medical care, which according to the DOJ Inspector General has not been able to fill open medical professional positions, and also effectively curtailed all outside medical trips for seriously-ill prisoners, most of whom are elderly and have life-threatening chronic conditions. It is nothing less than a national scandal, especially in a week where the heavily-protected President  fell ill.   Unlike the President, however, federal prisoners are completely on their own, often denied the most basic medical care and even medicine like cough drops. It is hard to believe that national office and AG Barr don't know.

            Waseca is approaching a 100% infection rate, after unscreened prisoners from the Okalahoma transfer center arrived and went into general population. Not far down the road, FMC Rochester, is now up to 13 staffers ill, and Sandstone is seeing an increase also. FCI McDowell, the east coast transfer site, is seeing a steady rise in new cases, as well as the customary shortage of cleaning supplies. At Alderson in West Virginia transfers have caused cases to steadily increase.  .

            Despite the distraction of the approaching election. The President's illness has refocused attention on COVID-19. Although many cities had begun to see a drop in new cases, it's not the case in federal prison, where prisoners no longer displaying symptoms counted, who are counted as "recovered", continue to feel weakened and ill, and need long term care,  NEVER provided in prison.

            The Supreme Court opened its new term today with remote operations, as Congress prepares for a bruising confirmation fight for Amy Coney Barrett. One of the cases on the docket is Borden v US, which asks whether the use of force clause in ACCA encompasses crimes with a mens rea of mere recklessness.

            Let not your heart be troubled, and do not let fear dominate your life.

 

Federal Legal Center, Inc., Derek A. Gilna, JD, Director,

113 McHenry Rd. #173, Buffalo Grove, Il   60089 (and Indiana)

dgilna1948@yahoo.com; blogging at Derek Gilna's Criminal Justice Blog.  

Barrett Nominated to Supreme Court; BOP Counts Hold Steady, but Waseca Has over 200 Confirmed Cases

 

DOJ COVID-19 Disinformation Campaign; Amy Coney Barrett SCOTUS Nominee

 

by Derek Gilna

 

            Definitely a week with positive developments. As I predicted, Amy Coney Barrett of the 7th Circuit was nominated to the Supreme Court, and will be confirmed. A conservative in the Scalia mode, she has remained skeptical of the government's arguments when it tries to put or keep people in prison, but has sometimes rejected  credible claims by defendants and prisoners. Like Justice Gorsuch, she will not reflexively side with the government in criminal cases.

            According to the DOJ website,  57,698 tests have been completed, and 15,000 have been positive. However, credible reports from individual prisons suggest a much higher rate of infection. Minnesota continues to be hard hit, with over 200 positives at Waseca (and still climbing) , and almost 100 at Sandstone. FMC Rochester with 15, and FPC Duluth, site of a presidential fly-in rally Wednesday night, trail  with five. Forrest City continues has 75, Terre Haute has five dorms locked down, and  Carswell continues to suffer.

            Ponder these comments from DOJ Attorney General Robert Barr: "In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules.  In case after case, [DOJ has] advanced and defended hyper-aggressive extensions of the criminal law.  This is wrong and [DOJ] must stop doing it...." Progress has been made in DOJ, but  the federal prison system continues to fight scrutiny and  reform. Whey  FSA time credits go into effect the end of the year, there will be more public scrutiny of by far the worst federal agency.

            The Second Circuit provided an excellent FSA opinion whose reasoning and arguments should prove significant in all circuits.  US v. Zullo, No. 19-3218-CR (2d Cir. Sept. 25, 2020). " We must today decide whether the First Step Act empowered district courts evaluating...compassionate release to consider any extraordinary and compelling reason for release that a defendant might raise, or whether courts remain bound by U.S. Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”) § 1B1.13 Application Note 1(D), which makes the Bureau of Prisons the sole arbiter of whether most reasons qualify as extraordinary and compelling."

            "Application Note 1(D) does not apply to compassionate release motions brought directly to the court by a defendant under the First Step Act, we vacate and remand the district court’s contrary decision....the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.  Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court’s discretion...." This improves the odds for successful appeal of CRs.

            Let not your heart be troubled.

 

Federal Legal Center, Inc., Derek A.  Gilna, JD, Director

113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana)

dgilna1948@yahoo.com, blogging at "Derek Gilna's Criminal Justice Blog."

 

Waseca Joins Carswell, Rochester, Terre Haute, and other BOP Facilities as COVID-Hot Spots; Prisoner Transfers Spark Virus Spread

 

Justice Ginsberg's Death Pushes SCOTUS Vacancy into Election Campaign:   What it Means

 

by Derek Gilna

 

            The death of celebrated Justice Ginsberg has made the future direction of the Supreme Court (SCOTUS) the top issue in the November election. Although the focus is on the President's pick, ( which will be 7th Circuit Appeals Court Judge Amy C.  Barrett), the real pressure is on Senators up for re-election. However, the impact on prisoner cases will be minimal regardless of the pick, since SCOTUS already has a conservative majority, all very capable of rendering positive decisions in the prisoner-rights area.

.           Ginsberg has best known for writing intelligent dissents (for the losing side), but the future of the court depends upon people like Justice Gorsuch, who believe that ALL people are entitled to constitutional protection. As the U.S. Sentencing Commission has ceased to be a force for reform, our focus turns to Congress to pass Second Step , and  also  to a President who hates the entrenched federal DOJ bureaucracy, and who has already done more for prisoners in 3 years than the previous president in 8.

            Attorney General Barr made news this week by attacking career prosecutors, whom he attacked as "headhunters," more interested in politics than justice.  In doing so, he reflects the public's view that the federal  prison system, like quarantines. is inhumane and unhealthy.  The  155,483 in custody  suffer virus surges in places like FMC Rochester, FCI Waseca, "house of horror" FMC Carswell, and Terre Haute, which all continue to struggle with basic "best health practices," and instead resort to a quiet information blackout to block prisoners communications with the outside world, in another, "Nothing to see here" moment. Both political parties should make a pledge for an independent oversight "ombudsman" to end this health nightmare.

              Has no one at DOJ or  the U.S Marshal's service read the CDC reports, which now states that EVERYONE should be tested if exposed to a sick person? Are all of these prisoner transfers worth the risk to prisoners and staff given the lack of medical care?    In the circuits,  the 7th  came up with two favorable decisions.In US v Bethany, 19-1754, the court remanded a FSA 401 petition, in light of US v.  Paladino, 401 F.3d 471,484 (2005). In US v Uriarte, 19-2092, (7th Cir. 9-15-20), the court affirmed the dc's grant of Section 403 FSA relief, which reduced the MM for a 924c.

            In US v. Easter, the court decided "whether, when considering a motion for sentence reduction under the FSA, a court must consider anew all of the 3553(a) factors...

Our answer is a resounding yes, (and we) vacate the denial of (his) motion and remand for reconsideration..." 19-2587, (3rd Cir. 9-15-20). In US v. Lee, 18-2391, the appeals court reversed an above-guidelines sentence, where there was nothing to show that the "criminal history has (any) bearing on the instant offenses,(and) does not justify the two-year upward variance...which nearly doubled (the) recommended sentence under the guidelines.   We therefore vacate...and remand for resentencing."

            Be not afraid and let not your heart be troubled.

 

Federal Legal Center, Inc., Derek A. Gilna, JD, Director,

113 McHenry Rd.   #173, Buffalo Grove, IL   60089 (and Indiana)

dgilna1948@yahoo.com; blogging at "Derek Gilna's Criminal Justice Blog." 

BOP Still Refuses to Test Prisoners for COVID-19 as Prisoner Transfer Threaten New Outbreaks

 

Is the Newest DOJ Strategy to Infect Everyone, and Hope for the Best? Case updates

 

by Derek Gilna

 

            Anecdotal evidence appears to confirm that the federal prison system has adopted a policy of infecting everyone and hoping for "herd immunity?" If so, this is a very dangerous and cynical strategy which can't end well. With "Con Air" and bus transfers in full  "catch-up" mode, there has been no testing or quarantining of new arrivals, whether health, or formally infected, but "recovered,"  and no attempt to enforce CDC distancing guidelines.

            In those institutions where CDC has taken over, like Lexington, prisoners have been advised that rather than releasing large groups of prisoners to home confinement, they will be transferred to other institutions.  Waseca is also experiencing increased infection counts, but nationwide totals are expected to remain steady or rise slightly..

            Federal prison guard unions accuse the DOJ of, " making the virus explode.”

There have now been 126 reported deaths (which doesn't count the dozens that died in hospital or were belatedly released before passing), 93 of which were at higher risk of complications from COVID-19, and over 25% were seventy or older.  It does not appear that DOJ has made ONE COVID-risk  motion for compassionate release

            Nonetheless, the federal prison population is still down to 155,000, but has come at a cost of severe long-term health problems, including serious mental illness. According to one study, about 41% of adult respondents nationwide reported symptoms of clinical anxiety or depression during the third week of July 2020.  As a result of the flood of negative publicity for DOJ, during the pandemic, the public is all too familiar with the negative effects of mass incarceration in this country.

            The U.S. Supreme Court does not yet formally meet until October, but new petitions have caught our attention. Borden v. US, 19-5410, out of the Sixth Circuit, scheduled for a November 3 argument, asks whether the "use of force" clause in the ACCA encompasses crimes with a mens rea of mere recklessness. This case has attracted at least seven supportive amicus briefs, and a positive ruling will be of help to many with ACCA sentences.

            In the Fifth Circuit, in the case of US v. Franco, the court reaffirmed the general rule in a Compassionate Release(CR)  motion under First Step, that a Petitioner is NOT excused from filing a written request with the warden before filing a motion in court, stating that 3582(c)(1)(A) requires the 30-day notice.  Keep in mind that you do NOT need to file BPs on a CR denial before you file in court, only on CARES Act denials, an important distinction.

            Did your defense attorney raise issues of abuse, health problems, mental health issues in your case, or in the sentencing process?   If not, it can be argued that you received inadequate representation of counsel, and include that in your 2255.   Were you advised to go to trial instead of seeking a plea to a reduced sentence, and go to trial, despite no one in your district being found not guilty in the past year-all grounds for a 2255.    Let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director,

113 McHenry Rd., #173 Buffalo Grove, Il   60089 (and Indiana)

dgilna1948@yahoo.com; "Derek Gilna's Criminal Justice Blog."

BOP Reopens Visiting Rooms and Starts Prisoner Transfers, Unleashing New Risks for Spread of COVID-19 Infection

 

Justice System Overwhelmed by COVID-19 and Compassionate Release (CR) Petitions

 

by Derek Gilna

 

            In these unsettled times, why should the "justice" system be any less turbulent?

Although the system has always been imperfect, at best, and far from color-blind, the fact remained that the mechanism remained intact. However, the federal district court system is now strained to the breaking point.   Court clerks are unable to docket mailed-in filings in a timely fashion,  taking days instead of hours. Judges and their law clerks are inundated with CR cases, and if they choose to read them, often issue form denials, without bothering to explain their decisions. Overworked public defenders have also not risen to the once-in-a-lifetime challenge.

            The outside world has reopened, with testing of even asymptomatic individuals, social distancing, sanitizing,  and mask-wearing, which has helped reduce infection counts. In a prison system that refuses to test all but the sickest, and is reopening to visitors in the near future and busing sick people to new institutions, this means that the virus will be with us into the new year. However, these climbing prison virus counts creates an opportunity for even the previously-denied petitioners to once again request CR, (after again sending the form request to the warden) citing the new facts.

            Waseca, Minnesota, now has a minimum of 50 new cases, and the local news media have taken notice. Terre Haute has well over a hundred cases and climbing. USP Lee has over 20 staffers infected. Seagoville is still a hotbed, as is Lompoc, and Forrest City, with numbers dropping, then climbing again. FMC Rochester has a lot of new cases apparently driven by transferees.  Those elsewhere deemed "recovered" continue to suffer, with no medical care. The DOJ website shows increased number of infections.

            . Senator Elizabeth Warren, who would be expected to have a prominent role in a Biden administration, is not impressed with the DOJ actions: "The culture of secrecy that's been allowed to develop in the nation's prisons...is antithetical to (their status) in a democratic society.   We have...officials who act as if this is their private information."  

            In the circuits, in US v Bailey, 18-5607 (consol.), (6th Cir. 9-1-20), the court in a white-collar Medicaid case reversed  and remanded two sentences, for an incorrect calculation of a loss amount, as well as a miscalculation of a two-level increase for "mass marketing." In US v Seabrook, 19-436, (2nd Cir., 8-4-20) the court vacated and remanded a sentence handed down after a guilty plea to wire fraud, where the court erred by applying the commercial bribery guideline dropped by the government, an argument that should be applicable in other circuits. In a bit of good news, DOJ statistics show that those released early under First Step and COVI-19 criteria have largely NOT re-offended, despite DOJ fear-mongering in court filings. The ACLU found the same result in its July report, "Decarceration and Crime During Covid-19."

            If your institution is still afflicted with the Coronavirus, and even if you have already been denied for CR, consider refiling with the institution, citing new facts.   Also, if you are still eligible for 2255 relief for inadequate representation of counsel, seek help time  before your time expires. Be not afraid, and let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director,

113 McHenry Rd., #173, Buffalo Grove, IL   60089 (And Indiana), dgilna1948@yahoo.com; "Derek Gilna's Criminal Justice Blog. "