BOP Accuses of MInimizing Prisoner Medical Records and Delaying Treatment to Save Money and Prevent Compassionate Releases

 

Congress, President, Ignore Federal Prison Medical, Programming, and Operational Meltdown, As Guards Continue Vaccine Protests; Appellate Updates

 

by Derek Gilna

 

            Ignore the "hard-time credit" and "65%" rumors that seem to circulate every week, but especially in times when  Congressional leaders and the President have shown little inclination to advance criminal justice reform legislation before the holidays.  Meanwhile, the prison health crisis continues to metastasize, as DELTA cases continue to grow in federal jails and prisons. Prisoners are also complaining of no First step programming (due to staff shortages) , and meager meals and empty commissary shelves.

            Although the national media is only beginning to cover these problematic conditions, there has been some coverage of prison guards grumblings and picketing over proposed nationwide federal employee vaccine mandates. 

            It is apparent that prison medical supervisors, and some staff, are actively minimizing prisoner medical conditions, and downplaying signs and symptoms of more serious conditions, including cancer and heart disease, that could be mitigated if medical staff followed accepted medical procedures. If you are contemplating seeking a release based upon medical issues, be sure to document your conditions and check your medical records for inaccuracies.

            Although there is no judicial review of a CARES denial, there is no question that a well-drafted petition for compassionate release can put you back on the CARES radar, and possibly put you in home confinement. Also, are you actively taking advantage of all other possible avenues for sentence relief? Have you considered filing a 2255 habeas alleging inadequate representation of counsel?

            Should you be lucky enough to win release, the job market for ex-prisoners has never been better, with businesses desperate for employees regardless of your record, especially in service, manufacturing, and trucking. Most of these new jobs come with impressive bonus and benefit packages.

            No one should be surprised that many of the same federal facilities that were epicenters of COVID-19 are now infested with DELTA. From Elkton, with at least one new death: "(Although) numerous inmates are currently in the hospital,...chief of the PHS staff in the Health Services Department claim there are no positive cases of Covid-19 at FCI-Elkton, nor are any FCI-Elkton inmates in the hospital for Covid-19-related symptoms," concluding, " if a person refuses to acknowledge that a problem exists no corrective action can be taken to rectify the problem." There are serious outbreaks at Carswell: "unit 2 North which is part of the High Rise Building has been locked down due to Covid;" Alderson, " There are many officers here at Alderson that say they are not getting the shot we have had like 12 or so officers with Covid in last month ."

            Ft Dix again has problems: " building 5811, has numerous active cases of COVID and has been locked down; Coleman continues to experience cases and lockdowns, it appears that FMC Rochester has  growing problem, with new staffers falling ill, and many prisoners also sick.

            Virtually every facility is experiencing shortages of basic necessities in commissary, and "short rations" in the dining room, including Aliceville, Waseca, and Forrest City, with numerous protests over mass punishment.

            A new study shows the direct connection between the number of prison Covid cases and community cases. "Jails and prisons are major sites of novel coronavirus (SARS-CoV-2) infection...Using data from Cook County Jail—one of the largest known nodes of SARS-CoV-2 spread in the United States—in Chicago, Illinois,...We found that jail–community cycling was a significant predictor of cases of coronavirus disease 2019 (COVID-19), accounting for 55 percent of the variance in case rates across ZIP codes in Chicago and 37 percent of the variance in all of Illinois...The data suggest that cycling people through Cook County Jail alone is associated with 15.7 percent of all documented COVID-19 cases in Illinois and 15.9 percent of all documented cases in Chicago as of April 19, 2020." https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00652, "Incarceration And Its Disseminations: COVID-19 Pandemic Lessons From Chicago’s Cook County Jail," by Reinhart and Chen.

            From the circuits, there is a new positive Hobbs Act case, United States v. Scott (3rd Cir. September 2021). Joining the Fourth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits, the Third Circuit held that a conviction for Hobbs Act robbery is not a prior conviction for a “crime of violence” under the “Career Offender” provisions of the Guidelines.

            In United States v. Abdulaziz (1st Cir. June 2021), the First Circuit vacated a defendant’s sentence which had been enhanced based on a 2014 conviction under state law for distributing marijuana, which the sentencing court held was a “controlled substance offense” under the Guidelines. The First Circuit held that convictions under state laws that do not distinguish between marijuana and hemp, as defined and legalized under federal law, cannot serve as “controlled substance offenses” under the Guidelines.

            In United States v. Nicolescu (6th Cir. October 2021), the court ruled that the enhancement for receiving stolen property and engaging in the business of receiving and selling stolen property does not apply to defendants who are selling property they themselves stole. The enhancement for the production or trafficking of unauthorized access devices can apply even if a defendant is also being sentenced for aggravated identity theft if the trafficking goes beyond the mere possession, transfer, or use of an unauthorized access device.

            Radu Miclaus and Bogdan Nicolescu were charged with operating a “cyber fraud ring” out of Romania and were convicted of wire fraud, wire fraud conspiracy, computer fraud conspiracy, aggravated identity theft, money laundering conspiracy, and conspiracy to traffic in counterfeit service marks. On appeal, the defendants raised several claims, including several challenges to their sentences. One challenge focused on whether the enhancement under U.S.S.G. 2B1.1(b)(4) was warranted, which applies if “the offense involved receiving stolen property, and the defendant was a person in the business of receiving and selling stolen property.” As a matter of first impression, the Court agreed that the enhancement should not have applied and rejected the government’s argument that it was sufficient for a defendant to “receive” the property from a co-conspirator or to “receive” the property from a computer virus.

            In an important 2255 case, in the United States Court of Appeals for the Fifth Circuit No. 20-50481 United States of America, Plaintiff—Appellee, versus Antonio Maurice Gardner, Defendant—Appellant, Gardner entered a plea of guilty without filing a motion to suppress the evidence against him. The district court, without an evidentiary hearing, denied his motion to withdraw his plea. "We hold that Gardner alleged sufficient facts to require a hearing upon the motion to withdraw, and if granted, his motion to suppress. We vacate and remand."

            Gardner, pro se, had moved to appoint new counsel, saying that he felt misled by Bailey because Bailey previously told him that objections to the PSR had been filed. As will become plain, it is significant that Gardner then also asserted that Bailey gave him inconsistent information as to the availability of audio or video footage of the search that led to his arrest, leaving him unsure of “what to believe.”

            In US v Grant, 20-4078, (6th Cir. October 1, 2021, "Defendant Joshua Grant shot his ex-girlfriend after a night of arguing at her apartment. He fled the scene and police apprehended him nearby in possession of a gun. He later pleaded guilty to two counts of violating 18 U.S.C. § 922(g) for unlawfully possessing that firearm—one for being a convicted felon, the other for being a domestic violence misdemeanant. The district court entered judgment on both convictions and imposed concurrent 120-month sentences. Grant appeals. He challenges the entry of multiple § 922(g) convictions and sentences for the same incident of firearm possession. He also challenges the district court’s application of the cross-reference for attempted murder in calculating his Sentencing Guidelines range. For the following reasons, we remand with instructions to vacate Grant’s sentence on one of the § 922(g) counts and to merge the two counts of conviction into one."

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

 

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

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

dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish)

federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries.

Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

 

 

 

 

 

BOP and DOJ Plagued by Breakthrough Infections of Vaccinated Prisoners

 

CDC Sounds New Warning on "Breakthrough" Infections; Guards File Grievance to Avoid Taking Vaccine:; Legislative Window losing Quickly, Safe Sentencing Still in Committee; Supreme Court Advances White-Collar Cases; Appellate Updates

 

by Derek Gilna

 

            The CDC issued a interesting statement on its website recently: "COVID-19 breakthrough infections are expected. COVID-19 vaccines are effective and are a critical tool to bring the pandemic under control; however, no vaccine is 100% effective at preventing illness. Some fully vaccinated people will get sick, and some will even be hospitalized or die from COVID-19. " www.cdc.gov,  10-15-21. The COVID death of vaccinated General Colin Powell has sparked new controversy.   Remember, initially all vaccines were initially  "experimental," which permitted their distribution without the normal months-long waiting period. Now, the government deems them safe and non-experimental; however, 7,178 have died of these breakthrough infections, and 25,000 have been hospitalized.

            There was also some worrisome new data on adverse reactions to vaccinations. AERS, (Adverse Events Reporting System) our vaccine adverse effect reporting system, showed at the beginning of this week 16,000 deaths, 23,000 disabilities, 10,000 MI/myocarditis, 87,000 urgent care visits, 75,000 hospital stays, and 775,000 total adverse events. The VAERS system is widely known to under-report events by 1-10%.  Eudravigilance, the European reporting system now associates 26,000 deaths in close proximity to administration of the vaccine. Whistleblower data from the CMS system (Medicare charts) showed close to 50,000 deaths in the Medicare group shortly after the vaccine. www.fda.gov.

            Elkton, which was the epicenter of the DOJ pandemic, has again experienced an apparent outbreak, with one death, and one gravely ill, but of course, none of this is reflected on the website. It has been reported that over 50 are ill with COVID-like symptoms. DOJ admits to significant cases of COVID-19 and 92 of its 122 institutions are at a Level 3 (Intense COVID-19 protocols in place as of October 5, 2021). A number of institutions have also cancelled inmate visitation. There are also reports from Terre Haute that the entire prison is on lockdown for COVID infections. One prisoner noted, " The (vaccine vials)  are exposed to the elements, they are left sitting on carts for many hours on end and they are supposed to be kept at below freezing temperatures and they will sit in the hall way."

            There was another fatality at Tallahassee, and many positive cases at Allenwood, with individuals not reporting symptoms to avoid being put in the SHU. Coleman has seen multiple cases from vaccinated individuals.

            According to the Department of Justice Office of Inspector General survey earlier this year, 63% of the Federal Bureau of Prisons (BOP) staff reported that they had already been vaccinated or were planning to get vaccinated as soon as possible, by the BOP or otherwise.  However, nearly 20 percent of respondents said that they were not sure whether they would get vaccinated and another 18 percent said they did not plan to get vaccinated at all. www.forbes.com, https://experience.argis.com.

            DOJ has mandated all employees must be vaccinated by November 22, 2021, or risk termination. Eric Speirs, President of AFGE Local 501 in Miami (FDC Miami) submitted a grievance that the mandate is unconstitutional and also argues that inmates, who cannot be mandated to take the vaccine, have more rights than the staff who supervise them. “I’m all for vaccines but this is not a personal issue, it is a Constitutional issue.” (Good to see that the government employees are fully on board with following the Constitution...)

            Another concern  is the lack of programming, and the breakdown of basic products and services at most institutions (including soap), generally blamed on staff shortages. The General Accounting Office said, "“Institution staff we interviewed stated that staffing shortfalls result in excessive overtime usage and a shortage of staff available for inmate programming such as drug treatment and education programs."

Congress continues to be bogged down with multiple meetings on the Infrastructure and other social justice measures with huge price tags, with important bills like Safe Sentencing in committee. On September 30, Senators Grassley and Durbin introduced, Senate Bill 2814, “Terry Technical Correction Act,” to reverse the narrowing of the Supreme Court's Terry decision.             Two new cases involving medical professionals accused by DOJ of drug-dealing have found their way to the U.S. Supreme Court. Couch v. United States, 20-7934, from the 11th Circuit, asks, "(1) Whether the trial court erred by conflating the valid defense of a crime as an element of that crime in its instruction to the jury regarding a physician alleged to have violated 21 U.S.C. § 841(a); and (2) whether the trial court erred by not explaining or adequately defining “good faith” in its instructions to the jury regarding a Controlled Substances Act case involving a physician.         Ruan v. United States, 20-1410, also from the 11th, asks, " Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he 'reasonably believed' or 'subjectively intended' that his prescriptions fall within that course of professional practice."          In the circuits, in  Bridges v. United States (March 7th Cir. 2021), Mar 23, 2021,  the Seventh Circuit remanded a defendant’s 2255 motion for an evidentiary hearing, holding that the defendant had made a sufficient showing that he may have received ineffective assistance of counsel based on his lawyer’s failure to argue that his Hobbs Act robbery was not a crime of violence under the career offender provision of the sentencing guidelines. While the Seventh Circuit had not yet decided whether Hobbs Act robbery was a crime of violence at the time of the defendant’s sentencing, other circuits had, the categorical approach under the Guidelines was well-known, and this was enough to warrant at least a hearing to determine whether the defendant’s counsel failed to reasonably investigate the issue before the defendant’s sentencing.         In U.S. v. Crooks, 997 F.3d 1273 (10th Cir. 2021) the 10th Circuit held that a district court is able to correct an erroneous career offender enhancement when a defendant qualifies for First Step relief, along with every other circuit who has considered the same issue. It quoted a previous decision which stated, "If a district court erred in the first Guideline calculation, it is not obligated to err again."          In a case that will probably shortly find its way to the U.S. Supreme Court, U.S. v. Goodall, 18-10004, (9th Cir. October 13, 2021), the defendant, facing more than 70 years in prison for his role in multiple armed robberies,  pleaded guilty to two counts of conspiracy to commit Hobbs Act robbery (18 U.S.C. 1951(a)) and brandishing a firearm during and in relation to a crime of violence (18 U.S.C. 924(c)(3)), with a 20-year sentencing recommendation. He waived his right to appeal his conviction or sentence. The court imposed a 14-year sentence.            About 18 months later, the Supreme Court (Davis, 2019), held that a conspiracy to commit Hobbs Act robbery cannot be a crime of violence under section 924(c)(3)'s residual clause. Goodall sought to vacate his conviction and sentence, arguing that Hobbs Act conspiracy is not a “crime of violence” under 924(c)’s “elements clause.” The Ninth Circuit dismissed. Goodall’s appellate waiver foreclosed any challenge based on Davis; the waiver was knowing and voluntary. The “illegal sentence” exception to an appellate waiver does not apply; it does not include illegal convictions. The rationale for the “illegal sentence” exception rests on the inherent uncertainty in sentencing, which does not exist for convictions. Although there always remains a chance the law could change in a defendant’s favor, the defendant knowingly and voluntarily assumes that risk because he receives a presumably favorable deal under existing law.       Be not afraid, and let not your heart be troubled.   Derek Gilna, Director, JD, MARJ, Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana) dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish) federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

BOP Delta Containment is Failing, As Deaths Continue to Climb, Driven By Unvaccinated Prison Guards

 

CDC: No Need for Most Vaccinated or "Recovered" COVID Individuals to be Given Booster; Merck Seeks Approval for New COVID Pill; DELTA Continues Its March Through Federal Prisons; Federal Judge in 9th Circuit Blocks Section 1326 Charges in Landmark Ruling; Appellate Updates

 

by Derek Gilna

 

            A lot has changed since COVID-19 ravaged American society, and taken the lives of 714,000 people. www.nytimes.com, 10-11-21. Over half of those deaths have occurred under the Biden administration.  Although official DOJ statistics list less than 300 deaths in the federal prison system, the number continues to climb, especially given the agency's practice of not counting newly-released prisoners or those who died in the hospital hours after being "released." www.nytimes.com, 8-31-21. I know of three federal prisoners who have died in the past 10 days. including one at Carswell in Texas. and one in Tallahassee. Although the number of Delta cases has begun to drop in the outside world, numbers at many federal prisons continue to climb, and some have more than 100, with entire units shut down.

            This, of course, exposes as a lie or at least an exaggeration the stock DOJ response in compassionate release cases that the virus is "well-managed," and "thousands of prisoners have been vaccinated." The difference of course is in the outside world over 56% have received a professionally-administered vaccine, ww.beckerhospitalreview.com, and another 30% have already had the disease and recovered.www.health.columbia.edu. That means that over 86% of Americans in the outside world have some form of immunity to COVID.

            However, at Oakdale, whereas over 70% of the prisoners have officially been vaccinated, only 34% of the guards have been, according to the local union rep, Ronald Morris. www.reuters.com. I thought our President had issued a federal mandate on this issue?

            The other unreported issue is the botched DOJ vaccination process. In an anonymous federal prison in Texas from July and August of this year, the percentage of previously vaccinated federal prisoners testing positive for DELTA was 74% (with unvaccinated prisoners CVID-positive at a 93% infection rate). www.cdc.gov, September 21,2021.  Carswell prisoners recall seeing boxes of vaccines sitting on a hot loading dock for many hours, which would reduce its potency exponentially. Does anyone think that the understaffed and under-resourced federal prison system did any better job of storing and administering the vaccines in prisons other than Carswell?

            The other under-reported issue is that there are tens of thousands of "recovered" federal prisoners suffering symptoms of "Long Covid," which can be life-threatening to the elderly, overweight, or immuno-compromised prisoner. "What we have found is that in some patients...the virus triggers an autoimmune reaction...the virus tricks the body into attacking itself." Dr. Swati Deshmukh, Prof. at Northwestern University Feinberg School of Medicine.  www.wlstv.com. Of course, one would hope that even a federal judge should know that the level of medical care in federal prison is non-existent.

            The good news is that there is now about to be approved an oral anti-viral medication from Merck that has reduced hospitalization by about half, accord to the Wall Street Journal, www.wsj.com, 10-8-21. Even DOJ should be able to hand out a pill. Also, today's Journal also said that "People who both had Covid-19 and are vaccinated don't need to rush to get the booster," according to multiple health experts. "Another factor that people who were infected and vaccinated should weigh before getting a booster is whether the extra dose could raise their potential risk of myocarditis, inflammation of the heart..."

            Meanwhile, federal prisoners continue to suffer: "At Coleman Low...61 positive cases (in one unit) and...87 positive cases (in another)...they aren't testing so they can reopen the compound." At Carswell: "there are 45 women from that work unit who contracted the virus on the Work unit. Seven women are still in the hospital, a few who were placed on ventilators and one who has been unresponsive for over two weeks now. They have schedule to take her off life support today as she has been in a coma for over two weeks." Others complain that they are not getting their proper medication because of staff shortages, and are denied treatment, like IV's, that would be given in the outside world. At Tallahassee, multiple infections, and at least one new death. At Yazoo City: " Yazoo USP (Where inmates were sent from Lexington and Butner) and the Yazoo low is under Code Red.." At USP Beaumont: " USP is on lock down here 2 units are on quarantine." 

            Unfortunately, at more than one DOJ prison facility, including one at the highest security level, the following narrative is occurring:  "Here, there is a number of guards that are protesting the mandate and picketing outside the complex.  Guards are being stretched to their limits on overtime as they cannot keep shifts staffed.  Programs are not happening, education staff are being sent to work units and G.E.D. and programs which are supposed to help inmates "rehabilitate" and reduce their risk of recidivating are being cancelled, postponed or liquidated." Sound familiar?

            In United States v. Gardner, No. 20-50481 (5th Cir. 2021), Gardner was indicted for possession with intent to distribute a mixture or substance containing a detectable amount of methamphetamine. He retained counsel (Bailey) and pleaded guilty without a plea agreement. Three months later, Gardner’s initial PSR was filed. On the day of sentencing, Bailey orally moved for and obtained a continuance to file objections to the PSR. Days later, Gardner, pro se, moved to appoint new counsel, saying that Bailey previously told him that objections to the PSR had already been filed and that Bailey gave him inconsistent information as to the availability of audio or video footage of the search that led to his arrest. The court granted Bailey’s subsequent motion to withdraw and appointed new counsel;
            Gardner then moved to withdraw his guilty plea, alleging ineffectiveness by former counsel Bailey, who told him “that a motion to suppress would be filed after the entering of the plea.” The district court denied the motion to withdraw the plea without an evidentiary hearing, sentencing Gardner to 240 months’ imprisonment. The Fifth Circuit vacated. Gardner alleged sufficient facts to require a hearing upon the motion to withdraw, and if granted, his motion to suppress.

            In a court ruling with potentially broad implications for U.S. immigration cases, a federal judge in Nevada found that a criminal law that dates to 1929 and makes it a felony for a person who has been deported to return to the United States is unconstitutional.

            U.S. District Judge Miranda Du in Reno, in an order issued Wednesday, found the law widely known as Section 1326 is based on “racist, nativist roots” and discriminates against Mexican and Latinx people in violation of the equal protection clause of the Fifth Amendment .“Anybody who works in federal courts knows the statute,” Franny Forsman, retired longtime chief of the Federal Public Defender’s Office in Nevada, said Thursday. “There really are a large number of cases that have been brought over the years under that section. They’re mostly public defender cases.”

            Section 1326 of the Immigration and Nationality Act makes it a crime for a person to enter the U.S. if they have been denied admission, deported or removed. It was enacted in 1952 using language from the Undesirable Aliens Act passed by Congress in 1929. Penalties were stiffened five times between 1988 and 1996 to increase its deterrent value. Forsman said she expected the government will appeal to the 9th U.S. Circuit Court of Appeals in San Francisco. www.washingtontimes.com.

            In United States v. Yates, No. 18-30183 (9th Cir. 2021), Heine and Yates, bank executives, were convicted of conspiracy to commit bank fraud (18 U.S.C. 1349) and 12 counts of making a false bank entry (18 U.S.C. 1005). The government told the jury that the two conspired to deprive the bank of accurate financial information in its records, the defendants’ salaries, and the use of bank funds.
            The Ninth Circuit vacated. There is no cognizable property interest in the ethereal right to accurate information. Distinguishing between a scheme to obtain a new or higher salary and a scheme to deceive an employer while continuing to draw an existing salary, the court held that the salary-maintenance theory was also legally insufficient. Even assuming the bank-funds theory was valid, the government’s reliance on those theories was not harmless. The court instructed the jury that it could find the defendants guilty of making false entries as co-conspirators, so the court also vacated the false-entry convictions. The court noted that insufficient evidence supported certain false entry convictions.

            We watching a case in the federal district court in Minnesota, which has implications for those currently on home confinement or who hope to be soon and are concerned about being returned to jail. In Anderson v. Birkholz, the judge said:   

"The magistrate judge disagreed (with the government position.)  Noting that § 3624(c)(4) states that "[n]othing in this subsection shall be construed to limit or restrict the authority of the Director ...under section 3621," and that § 3621 gives ...broad discretion in designating a prisoner's place of confinement, the magistrate judge concluded: A federal prisoner may not seek habeas relief on the grounds that § 3624(c)(2) circumscribes the discretion otherwise granted ...under § 3621(b). And Anderson offers no reason to believe that the (bureau) overstepped its (broad) discretion under § 3621(b) in determining where he should be placed for the final months of his custodial term. (R&R at 4.)

            In his Objection, Anderson argues at length that § 3621(b), and the broad discretion it guarantees to the BOP, applies only to the BOP's designation of a prisoner to a prison facility—not to home confinement determinations.  This Court has held otherwise—even under the First Step Act. See, e.g., United States v. Johnson, No. 14-cr-00159 (DWF/TNL), 2021 WL 1550460, at *3 (D. Minn. Apr. 20, 2021) ("[B]ecause release to home confinement is a placement decision, the Court finds that it is solely within( the federal prison system's)  discretion to dictate." (citing 18 U.S.C. § 3624(c)); United States v. Brown, No. 12-cr-00172(3) (SRN), 2020 WL 1922567, at *2 (D. Minn. Apr. 21, 2020) ("[T]he (federal prison system) has exclusive authority to determine the placement of prisoners. The First Step Act, CARES Act, and Second Chance Act merely give eligible inmates the possibility to be considered for home confinement or halfway house placement." (citations omitted)); United States v. Kluge, No. 17-cr-00061 (DWF), 2020 WL 209287, at *3 (D. Minn. Jan. 14, 2020) ("Nothing in the statutes amended by the FSA permits the Court to place Defendant in home confinement. Under the FSA, the authority to place a prisoner remains with the (bureau)." (citing 18 U.S.C. §§ 3624(c)(4) and 3621(b)))." This should prove very interesting.

            Be not afraid and let not our heart be troubled.

 

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

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

dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish)

federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries.

Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

 

 

 

 

EQUAL Act Passes the House, Moves to Senate; DELTA Continues to Afflict Federal Prisoners

 

House Overwhelmingly Passes EQUAL Act, Sends It to Senate; DOJ Fails to Follow CDC Testing Requirements; Lompoc Covid Class Action Continues;  Fascinating new U of C Study on How Incarceration Doesn't Reduce Recidivism;  Supreme Court Accepts New Case Seeking Wider FSA relief; New Compassionate Relief Grants for Non-Covid Grounds;  An example of how DOJ Alters Medical Records; FCI Phoenix Censors Us 

 

by Derek Gilna

 

            The US House voted 361-66 to pass the EQUAL Act to end the statutory disparity between powder and crack cocaine sentences. Now it moves to the Senate, where it enjoys considerable bi-partisan support, with co-sponsors Senators Rob Portman (R-OH), Cory Booker (D-NJ), Rand Paul (R-KY), Dick Durbin (D-IL), Thom Tillis (R-NC), and Patrick Leahy (D-VT). Although there is little opposition to the bill in the Senate (other than the usual suspect from Arkansas) no vote has been scheduled. However, it is possible if Congressional leaders, who pushed this along despite little apparent prodding from the President, might act without him.

            Senator Durbin also introduced in the past week  S. 2914:" A bill to amend the First Step Act of 2018 to permit defendants convicted of certain offenses to be eligible for reduced sentences, and for other purposes."    There is no text available but we will follow this closely.  

            Although DOJ acts as if it doesn't exist, Delta refuses to go away, as the numbers of infected continue to climb, while the number of cases in the public at large continue their decline. Thus far, there are few reported cases of MU or other variants bypassing vaccine protections, so that is a bit of good news. However, take a look at the latest excerpts from the CDC on testing protocols for correction institutions: "Ensure that separate physical locations (dedicated housing areas and bathrooms) have been identified to 1) isolate individuals with confirmed COVID-19 (individually or cohorted), 2) isolate individuals with suspected COVID-19 (INDIVIDUALLY – do not cohort), and 3) quarantine close contacts of those with confirmed or suspected COVID-19 (ideally individually; cohorted if necessary). The plan should include contingencies for multiple locations if numerous infected individuals and/or close contacts are identified and require medical isolation or quarantine simultaneously...

            Testing persons with signs or symptoms consistent with COVID-19, regardless of vaccination status: Incarcerated/detained persons with symptoms, regardless of COVID-19 vaccination status,  should be given a mask , moved to medical isolation in a separate environment from other individuals, medically evaluated, and TESTED. Facility staff should carefully evaluate and support the mental health needs of individuals before and during medical isolation. If incarcerated/detained persons receive a positive test result for SARS-CoV-2, they should remain in medical isolation until they meet the criteria for discontinuing isolation,... A single new case of SARS-CoV-2 infection in any correctional and detention center staff or incarcerated/detained person should be considered an outbreak. If an outbreak is occurring, facilities should also perform daily symptom and temperature screening for all incarcerated/detained persons who have been exposed to someone with confirmed or suspected COVID-19 until it has been at least 14 days since the last positive test. " www.cdc.com.             I am unaware of any DOJ facility that is following this protocol, hence there continue to be outbreaks and unnecessary illness, risk of death, and suffering

            Although CARES releases continue, infection numbers have climbed in the most overcrowded (or poorly-managed) facilities. From Alderson Camp: " We have 645 inmates here...positive cases that have been found in GP and moved to our Visitation Building. There is no mass testing, therefore the inmates found positive that were moved from A Building to visitation could have very possibly infected others that they cohabitated with. We are PACKED into both of our buildings, two to a cube... flights (came) in as well...There are mattresses as well as TV's now placed into our education building to stage as an additional quarantine space."

            Springfield Medical Center also has its share of problems: " We have had 25 deaths, and a couple weeks ago they had 5 officers test Positive for Covid and they said we had zero inmates with Covid. And now they are reporting only 4 inmates have Covid and that's without testing anybody, especially all the inmates that are coughing and can't get out of bed. They are refusing to test anybody and a lot of us work with sick guys that use a breathing machine to stay alive... " Another at the same prison said: " My whole unit is coughing and they won't test anybody even when we ask. Some of us work in the medical section with inmates that cant breathe already and those guys are asking to be tested so they don't put anybody in danger and they still won't test them and tell them to go to work even if they feel sick."

            Perennial hot spot Carswell had another death in the past week: "Carswell ...is out of the tests to test us...the women are complaining of symptoms but can't get tested and they are leaving them in the CC5 unit... the most vulnerable inmates...I am a care level 4 and have already been hospitalized for a month with lung problems and still have long Covid symptoms... since Monday they we have had 12 test positive we were told they are out of test so go figure..."  Tallahassee has many ill prisoners, in both the men's and women's sides, with one death,  and Victorville women's is locked down due to increasing cases. Englewood RDAP is on quarantine. From Bryan women's camp: "We are not being tested...,any guards are ill and not coming to work."  FMC Rochester has at least 5 staff and at least 5 inmates test positive. Milan is revaccinating prisoners since it appears that original shots were either contaminated or administered incorrectly.

            The long-running Lompoc class action continues, with slow, steady progress, including increased testing, transfers to reduce population, and discovery on the poor medical procedures proceeding.   We will keep a watchful eye on this litigation. Torres v. Milusnic, USDC, CD of CA, (Western Division - Los Angeles),#: 2:20-cv-04450-CBM-PVC.

            A fascinating new study from the University of Chicago published these findings:

."Based on a much larger meta-analysis of 116 studies, the current analysis shows that custodial sanctions have no effect on reoffending or slightly increase it when compared with the effects of noncustodial sanctions such as probation... All sophisticated assessments of the research have independently reached the same conclusion. The null effect of custodial compared with noncustodial sanctions is considered a “criminological fact.” Incarceration cannot be justified on the grounds it affords public safety by decreasing recidivism. Prisons are unlikely to reduce reoffending unless they can be transformed into people-changing institutions on the basis of available evidence on what works organizationally to reform offenders." https://www.journals.uchicago.edu.

            The US Supreme Court as granted cert to a new petition, 20-1650,  Carlos Conception v. US, which sets forth this question: Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

            Another example of why you need to make sure that your medical records accurately reflect your chronic medical problems: "Today I had a pulmonary function test because of damage to my lungs from the virus. Here's the disturbing part: I had the virus in June of 2020, the PFT wasn't approved until May 4, 2021, and then they waited another almost 5 months to do the test. When I filed for a reduced sentence because of my risk from the virus and the damage done, the prison said I didn't have any damage because my medical records didn't say I had damage. The court believed them and denied my motion.

            (DOJ) intentionally delayed my treatment so there would be no record of any damage done by the virus. Now it's too late because my motion got denied and if I file again it would be useless because now they say the vaccine is fixing everything. I still have to use my inhaler several times a day. That won't ever go away. And they wonder why I don't trust government employees, like I'm wrong for not trusting them."

            One of the many new cases reducing sentences based upon FSA considerations, with no Covid justification is United States v. Lizarraras-Chacon, No. 20-30001 (9th Cir. 2021  )In 2011, Chacon was charged with conspiracy to possess with intent to distribute 1,000 grams or more of heroin and possession with intent to distribute 100 grams or more of heroin. The prosecution moved under 21 U.S.C. 851 to increase the mandatory minimum sentence based on his 2010 Oregon drug conviction for which Chacon was sentenced to 90 days in jail. Chacon entered a plea agreement. The parties jointly recommended a total sentence of 210 months of incarceration. His total Offense Level included enhancements for possession of a firearm, aggravating role as a leader, and using children in the offense. The resulting applicable guideline range was 210–262 months. The court sentenced Chacon to 210 months’ imprisonment.
            The district court rejected his motions for 18 U.S.C. 3582(c) sentence reduction, based on Sentencing Guidelines Amendment 782, which reduced most base offense levels in the U.S.S.G. 2D1.1 Drug Quantity Table. The Ninth Circuit reversed. The legislative and judicial developments affecting mandatory statutory minimums are relevant considerations to the 18 U.S.C. 3553(a) factors at step two of a motion for reduction of sentence under 18 U.S.C. 3582(c)(2). The district court apparently believed that it did not have the discretion to consider such developments.

            FCI Phoenix, apparently unhappy that we reported the accurate Covid counts at its institution, blocked our newsletter, but this will not deter our continued reporting of facts, not government propaganda. (Keep the alternate email of dagilna1948@yahoo.com close, just in case.)    Be not afraid, and let not your heart be troubled.

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

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

dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish)

federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries.

Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."