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)

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