FSA Brings Christmas in January: Thousands Released by First Step Credits; PATTERN Classifications Next For Congressional Scrutiny

 

Accountability on Horizon for COVID Incompetence? DOJ Inspector General Criticized; Covid and Circuit Updates.

 

by Derek Gilna

 

            After dragging out the implementation of First Step Act Sentence Credits as long as possible, DOJ finally began the long-awaited process of releasing individuals who were entitled to immediate release, in some cases months after they should have been released. In the past two weeks, almost 5000 prisoners have been released to either halfway house, home confinement, or to outright release. Legal experts are still considering whether DOJ is financially liable for keeping individuals in custody unnecessarily, but that subject will be revisited in a future column.

            So for those remaining, who exactly is eligible to apply FSA Time Credits toward pre-release custody or supervised release? Those in federal custody who have successfully participated in Evidence-Based Recidivism Reducing Programs (EBRR or Programs) or Productive Activities (PA), those classified as “minimum” or “low” risk for at least one assessment or who can obtain warden approval, and those individuals who earned credits equal to the remainder of their prison term. DOJ has apparently backed off its initial opinion that certain orderly positions were ineligible for sentence credit.

            Thos who are serving state convictions, those who have a final order of removal under immigration law, those with a sentence for a conviction the First Step Act identifies as disqualifying, as those with certain, generally violent, current or prior convictions. These credits can be applied toward pre-release custody (halfway house or home confinement transfers) or early transfer to supervised release (essentially shortening the sentence), with a one cap, but people may be transferred to pre-release custody earlier.

            What about those who have been classified as "medium," who are eligible to earn, but not to immediately apply those sentence credits? Since this is an arbitrary  DOJ interpretation of a law, you should send a cop out to your case manager for an immediate re-classification if you feel that it was unjust.  In my opinion, this is immediately judicially reviewable, without resorting to administrative remedies.

            From where you sit, it can be hard to process, but I can tell you that I have never seen such outright inter-governmental scrutiny directed to DOJ and the federal prison system. The pandemic exposed many federal agencies as grossly incompetent, and DOJ's procedures, decision-making, and reputation have also taken a huge hit, with well under half of the US population saying they have lost trust in it and the rest of its agencies. The past week the DOJ Inspector General was caught by a federal special prosecutor, John Durham,  investigating the "Russiagate" manufactured scandal, for withholding important evidence, including key cell phones. This comes as no surprise to me, since these institutions all generally work together to protect themselves and their cronies, but  the truth has a way of eventually coming out. However, in the past year there has been a welcome movement in and out of Congress to "rein in" unaccountable agencies, such as DOJ. It will not be an easy or quick process.

Another area that has been negatively impacted has been prisoner nutrition. The national menu is almost never followed, in any institution, and this combined with chronic commissary shortages, has had a negative effect on prisoner health This is reflected in the high number of OMICRON and DELTA related infections and deaths among prisoners in the past two or three months. According to one prisoner: " food is terrible - expired milk, moldy bread, not following BOP national menu at all for the last three weeks."  This combined with spotty or non-existent prison health care, makes federal prisoners as a group vulnerable to COVID.                                                       Turns out that it is not our imagination that prisoners are more vulnerable to OMICRON than the outside world. " The Consequences of Incarceration for Mortality in the United States," by Sebastian Daza, Alberto Palloni, and Jerrett Jones, published in Demography , www.ncbi.nim.nig.gov, states the obvious:  "an emerging line of research considers the consequences of incarceration for individual’s health and well-being. Recent studies find that those with an incarceration history report higher chronic health problems (Schnittker & John, 2007), lower self-reported health (Massoglia, 2008a), higher obesity (Houle & Martin, 2011), more infectious diseases, stress-related illness (Massoglia, 2008b), and psychological disorders (Massoglia & Pridemore, 2015).           The tragic infection and death rates at Alderson and Carswell could have been avoided if DOJ had actually had an "Action Plan," that was not merely a piece of paper to be  with the courts, but an actual training program circulated to Regional and prison authorities. With the pandemic now approaching two years, one would think that DOJ would actually have a clue on what to do, other than "Mixing and Matching" positives and negatives, based upon what staff have themselves told prisoners at many locations. Amazingly, both Alderson and Carswell continue to have more NEW infections, and they are certainly not alone.                                                                                                                                       FPC Duluth has yet another outbreak, and its neighbor FMC Rochester has seen "official" cases for prisoners climbing well above 50, and approximately half of that for staff. Peterson, Yazoo City, Thompson, Camp Lee, Butner-all units, Oakdale, FCI Schuylkill, ALiceville, Gilmer, and Pekin, both men and women's affected, with all these instituions in Code Red, with full, or almost full lockdowns, and high levels of infection.          Weren't we told by the government, and now certain federal courts, that if you are vaccinated, you are not at risk?   Not so fast: In early August 2021, the director of the Oxford Vaccine Group, professor Sir Andrew Pollard, actually spoke out against the idea that the COVID shots were the answer everyone was looking for. At the time, he referred to the idea that vaccine-induced herd immunity against COVID was “mythical.” As reported by Yahoo! News, Aug. 10, 2021:4 “… Pollard … said … that herd immunity is ‘not a possibility’ with the current Delta variant. He called the idea ‘mythical,’ warning that vaccine programs should not be developed around it. During that same APPG meeting, professor Paul Hunter from the University of East Anglia stressed that variants capable of evading the COVID shots were “an absolute inevitability.” Pollard and Hunter both turned out to be correct, as Omicron’s vaccine-evading capacity has now been documented. Yahoo News, Aug. 10, 2021.                                                                               Current methods of PATTERN classification are also under review. US Attorney General Merrick Garland has directed the department to look for ways to assess racial bias and make the tool more transparent, a spokeswoman said. One option is to adjust the cutoff points between the risk categories, allowing more prisoners to earn credits for release, which would "maximize access to First Step Act relief while ensuring public safety," she said. DOJ  has to reevaluate the 14,000 people in prison who got lumped into the wrong category. "This is just one example of the ways that harmful artificial intelligence systems are being rolled out in everything from the criminal legal system to employment decisions to who gets access to housing and social benefits," said Sasha Costanza-Chock, director of research and design for the Algorithmic Justice League, which studies the social implications of artificial intelligence.           In US v Benton, 19-7471, (4th Cir.,  January 24, 2022), the Fourth Circuit reversed the district court's denial of defendant's 28 U.S.C. 2255 motion seeking to vacate his sentence. The district court found that defendant qualified as an armed career criminal by relying on prior convictions that were not identified as predicates in defendant's presentence report and of which he had no notice at sentencing. The court concluded that the district court's finding was contrary to United States v. Hodge, 902 F.3d 420 (4th Cir. 2018), which held that the government cannot rely on collateral review on ACCA predicates that were not identified at sentencing, in order to preserve an enhancement that no longer can be sustained by the original predicates. Because there was a Hodge violation in this case, the court vacated defendant's 18 U.S.C. 922(g) sentence and remanded for resentencing.        In US v. Freeman,   19-4104, ( 4th Cir. January 25, 2022), on rehearing en banc, the court vacated defendant's sentence for possession with intent to distribute hydrocodone and oxycodone. Instead of pursuing defendant's objections, counsel relied entirely on a motion to enter a drug court diversion program (the BRIDGE program) that could have permitted defendant, if admitted, to enter treatment instead of going to prison. The court concluded that defendant clearly received ineffective assistance of counsel where counsel was unequivocally wrong on the law when he waived her meritorious objections to the PSR on the ground that none of those objections reduce the number that is relevant to this court. Rather, if successful, defendant's objections would have reduced the low end of her Sentencing Guidelines range by almost ten years. Because counsel's deficient performance prejudiced plaintiff, the court remanded for resentencing.                                        In US v White, 19-4886, ( 8th Cir. January 27, 2022), White was convicted of being a felon in possession of a firearm. In determining White’s sentence, the district court applied the Armed Career Criminal Act (ACCA) 18 U.S.C. 924(e), based on three prior convictions for “violent felonies,” including Virginia common law robbery. The court imposed the ACCA’s mandatory minimum sentence of 180 months’ imprisonment. White argued that he did not qualify as an armed career criminal because Virginia common law robbery can be committed without the actual, attempted, or threatened use of physical force, by threatening to accuse the victim of having committed sodomy. The Virginia Supreme Court responded to a certified question: Under Virginia common law, an individual can be convicted of robbery by means of threatening to accuse the victim of having committed sodomy “if the accusation of 'sodomy’ involves a crime against nature under extant criminal law.” The Eighth Circuit then vacated the sentence. Virginia common law robbery can be committed without proving as an element the “use, attempted use, or threatened use of physical force,” an element required for prior convictions to qualify as predicate offenses under the “violent force” provision of the ACCA.   "Act like what you do makes a difference.   It does."    Henry James.   Be not afraid, and let not your heart be troubled.   Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

BOP Buckles Under Congressional Pressure: Are Big Changes Coming Soon? First Step Act Releases Begin

 

Congress Tightens the Screws on Federal Prison System, Thousands Are Released of by First Step Act;  PATTERN System Revision Probable; Biden Now Owns the Prison COVID Crisis; Supreme Court News: Appellate Updates

 

by Derek Gilna

 

            The First Step Act (FSA) is the gift that keeps on giving. The past week thousands of federal prisoners "packed out" as the federal prison system, under heavy Congressional pressure, finally implemented FSA's sentence credits based upon PATTERN scores. Thousands more should be released in the coming weeks.

            This hopeful development overshadowed last week's House Judiciary Committee meeting, which featured a host of anti-incarceration speakers and medical experts who catalogued DOJ's institutional failure to  bring its rogue agency under control.  According to Chairman Jerry Nadler, "many questions also remain about whether the PATTERN tool, which ...(determines) an inmate’s eligibility to receive Earned Time Credits, has been sufficiently validated by independent experts.  I look forward to hearing from our witnesses on this important question. I also look forward to examining the ... troubling (DOJ)  response to the COVID-19 pandemic and its inability to protect inmates and staff adequately." This could get interesting soon, in a very good way, based upon the testimony of reform professionals and activists, which notably did not include a DOJ representative.

            One witness called prison illness and death figures grossly inaccurate: "on any given day, advocates, lawyers, and people living behind bars can identify people that they know have died but who are not reflected in the publicly reported data. ...Bree Eberbaugh and Rebecca Marie Adams,  (were from) FPC Alderson when they died.... On December 1, 2021, there was only one reported infection at the institution. But by December 15, 2021, there were 56.6 And by December 26, 2021, there were 124.7 As of January 19, 2022, the number remains at 71.8 Although (the website said) that approximately 184 people have 'recovered,' —assuming this data is accurate—for a prison with a population of 677, these current numbers suggest that approximately 38% of the population has been or is currently infected with COVID-19. (Probably more like 80%.) https://docs.house.gov/meetings/JU/JU08/20220121/114349/HHRG-117-JU08-Wstate-GuernseyA-20220121.pdf.

            Another witness highlighted DOJ confusion at implementing its "Action Plans": "A July 2021 report (on the) COVID-19 response, ...found that....staff reported confusion about how to implement the guidance... (the) DOJ Office of Inspector General (OIG) sent a survey to all (staff) in April 2020, in part to gather anonymous staff perspectives on the adequacy of the guidance they received...about exposure to COVID-19. Of the 28 percent of employees who responded, 59 percent of respondents thought the guidance was not clear and 53 percent thought the guidance was not timely." https://docs.house.gov/meetings/JU/JU08/20220121/114349/HHRG-117-JU08-Wstate-GoodwinG-20220121.pdf.

            The capstone on this damning testimony was that of correctional health expert, Dr. Homer Venters, who once again pointed out the systemic inadequacies in DOJ prison health care, that institutionalizes, and apparently rewards incompetence and inaccurate medical record-keeping. https://judiciary.house.gov/calendar/ eventsingle.aspx?EventID=4827                          

            Now the legislative energy wasted on Biden's socialist dream, "Build Back Better," can be redirected to an area where there is close bipartisan support of a substantial majority in Congress-federal justice reform.   Biden, unlike Trump, has been AWOL on justice reform, but the unlikely tag team of Senators Durbin and Grassley together have the power and the motivation to take the lead and taking action on the pending legislation.  Congress has sent a clear message for prisons to start granting warden-based compassionate release petitions and soon.  I also expect those dissatisfied with their current pattern score of Medium will have another opportunity to make their case for reduction in the near future.

            Alderson continues the dubious distinction of COVID-central:" my unit just had 45 out of 59 people test positive,,, on Saturday. Today 35 more tested positive out of (another unit), (with) at least 120 people in (another) who have tested positive within the last 10 days...(staff) hate to take inmates to the hospital and there (are) no nurses here at night." Carswell continues its mix-and-match policy, with the prison... after noting positive cases, mass-tested, returned returning positives to units or work details, and then again mass tested again with the Quest test; "So it appears that they let the virus run through the unit, then mass tested to see how many of us were asymptomatic." Especially disturbing is the four deaths in Alderson out of 600 women, a staggering death rate that would ignite a firestorm of anguish and panic if it happened in the outside world. Other than prisoners, weakened by poor nutrition and substandard health care, few now die OF COVID, but individuals do die from other serious diseases causes WITH COVID.  The lack of treatment for these serious conditions in prison are the biggest risk to the incarcerated.

            Four new studies highlight the dangers of COVID-19 in cramped prisons with inmates transferred among facilities, scarce testing resources and personal protective equipment (PPE), and high vaccine hesitancy at (unnamed) US prisons and jails. Late last week, Morbidity and Mortality Weekly Report (MMWR) published three studies on COVID-19 in prisons (Carswell?): https://www.cidrap.umn.edu/news-perspective/2021/04/studies-detail-large-covid-outbreaks-us-prisons-jails.

            And, "if  20 prisoners and 16 staff are being reported ...at FCI Cumberland, they are seriously misrepresenting the facts to the public. We have the entire prison locked down right now with outbreaks in more than half of our units THAT I KNOW of." Seagoville, La Tuna, FCI Ashland, Lexington, Tallahassee, Yazoo City, Victorville, FCI Cumberland, Terre Haute, and Oxford, are all in various stages of lockdown, with estimates of infections all running at 50% or more, not reflected on DOJ websites.

            It was a relatively quiet week for the US Supreme Court, and,  unfortunately, the justices refused to rule on Jarvis, although its core issues are currently pending in other, perhaps factually more favorable cases. The important Taylor case, argued in December,  asks, " Whether 18 U.S.C. 924(c)(3)(A)'s definition of "crime of violence" excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. 1951(a)," awaits the court's opinion.

            In a victory for common sense, and a bit of progress for SO's,  , a unanimous Eleventh Circuit panel issued an interesting and notable ruling in McClendon v. Long, No. 21-10092 (11th Cir.  Jan. 19, 2022). "In October 2018, two deputies from the Butts County Sheriff’s Office placed signs in the front yards of the residences of all 57 registered sex offenders within the County, warning “STOP” and “NO TRICK-OR-TREAT AT THIS ADDRESS.” Three SO's sued, but the district court denied a permanent injunction and granted summary judgment in favor of the Sheriff...(The Appellate court reversed, stating) we conclude that the Sheriff’s warning signs are compelled government speech, and their placement violates a homeowner’s First Amendment rights.  Thus, we vacate the district court’s judgment in favor of the Sheriff and remand for further proceedings consistent with this opinion."

            The pending bill seeking preventing judges from  using "acquitted conduct" to enhance a sentence, is gathering new support, given the high-profile case of Elizabeth Holmes, who was found guilty of several counts of fraud, but acquitted on others. Perhaps convicting based upon "ghost dope" might also receive some needed attention. In US v Gomez, 17-20526m (5th Cir.  January 18, 2022), on remand from the Supreme Court, the Fifth Circuit agreed with the parties that, in light of Borden v. United States, 141 S. Ct. 1817 (2021), defendant's conviction for aggravated assault in Texas does not qualify as an aggravated felony under 8 U.S.C. 1326(b)(2). The court remanded the case to the district court for the limited purpose of reforming its judgment to reflect defendant's conviction and sentencing under section 1326(b)(1).

         In US v. Cozad, 20-3233, the Tenth Circuit vacated a defendant’s sentence and remanded for re-sentencing after the district court imposed a higher sentence based on the defendant’s decision to plead guilty without a plea agreement with the Government. The Court concluded that a defendant’s decision whether to enter an “open plea” does not fall under one of the factors listed in 18 USC 3553, and it was therefore procedurally unreasonable for the judge to consider that fact in imposing a higher sentence.

            Also, my personal observation, supported by numerous publications, is that there has never been a better time to get a job, especially in service industries, which often require only limited training. If you can drive, you can get a job almost immediately.

 

“Suffering has been stronger than all other teaching, and has taught me to understand what your heart used to be. I have been bent and broken, but - I hope - into a better shape.” Charles Dickens.

 

Be not afraid and let not your heart be troubled.

 

Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com).

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

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

    

 

BOP Programing Sentencing Credit Rule FInally Published: OMICRON Continues to Devastate BOP Facilities

 

New DOJ First Step Rules Mandate Expansive Application of Programming Credits; Multiple Covid Deaths at Alderson; Omicron Now Comprises over 95% of All Cases: Heavy Death Toll in Federal Prison Contradicts Government Arguments of Vaccination Effectiveness in Compassionate Releases; Elderly Sentence Relief Bill; Dignity of Women Act; Appellate Updates

 

by Derek Gilna

 

            DOJ narrowly beat the statutory deadline of January 15, 2022, and released the final rule regarding implementation of First Step Act (FSA) programming credits, and for the most part acceded to the demands of Congress and activists-at least on paper-for a generous application of these credits. Under FSA, signed in December 2018, inmates are eligible to earn time credits — 10 days to 15 days of credit for every 30 days they participate in prison programs to reduce recidivism. The programs range from anger management and drug treatment to educational, work and social skills classes. All inmates being released will be sent to supervised release programs, released to home confinement or transferred into the bureau’s residential re-entry centers, commonly known as halfway houses. The law allows inmates to earn time credits back to 2018, when the First Step Act was enacted. Inmates who can remain in lower risk categories will be eligible for an additional five days of credit in each 30-day period. Advocates say the finalized definition of a “day” will make it easier for a wide array of prison programs to count toward time credits and will mean more people will be eligible for release earlier.

            Virtually all prison programming, as well as employment in Unicor, will qualify, although orderly jobs will not. Programming, whether completed or not, will qualify, and it is my suspicion that since prison officials are prone to exaggeration regarding the level of successful participation in programming to impress their supervisors, you  might receive more credit than you think, especially important given pandemic restrictions.       Generally speaking, crimes of violence, arson, leadership, and computer, immigration crimes, and SO offenses will not qualify for sentence credit, although programming may still qualify you for additional phone minutes, commissary, and placement closer to home.  Make certain that you gather your programming information and ask your counselor or case manager for further verification of that information. Since DOJ often has a problem following its own rules and regulations, I expect problems to arise. If proper credits are not given, I look forward to assisting you to make sure you get all the time off that you deserve.

            The COVID nightmare continues in federal prisons, with Alderson experiencing 3 and perhaps 4 deaths in the past ten days, and Carswell and other institutions experiencing death, and untold misery. The CDC says that the highly infectious OMICRON variant has supplanted DELTA in 85% of recorded cases, and in the outside world has resulted in less hospitalization and death.    However, the miserable state of health care in federal prison means that those who contract OMICRON are in worse physical state to start with, and in-prison treatment of COVID is virtually non-existent.   When a prisoner's physical state has become grave, short-handed and over-worked staff scramble to take them to the hospital, where it is often too late to reverse the illness' progression.

            Many prison officials have responded by blocking email, telephone, and even snail-mail access to lawyers and advocates, opening legal mail in violation of DOJ rules, but , of course, this is all a futile exercise of a corrupt and unaccountable bureaucracy. Dozens of Congressmen have promised a full investigation of the federal prison system's pathetic response to COVID, with blunt language that all but promises investigation and possible further legal action. Needless to say, these Congressmen are all now on my mailing list.

            Censorship in a free society can only work for so long, as is becoming obvious with additional studies regarding vaccine ineffectiveness suddenly becoming public as the CDC admits that OMICRON cannot be controlled by vaccination.  Although more studies and data are becoming available on a daily basis, it is clear that vaccination does not prevent OMICRON infection, and in prisoners with at least one, but generally more than one co-morbidities, it can still be fatal, as proven at Alderson and Carswell, but also at  dozens of other institutions.

            There are also continuing doubts about whether DOJ's handling of the vaccines prior to their being administered compromised their effectiveness, and concern about the safety of the one-shot Johnson and Johnson vaccine, which has quietly been discontinued in federal prisons after some severe reactions. Food and Drug Administration officials on Tuesday added a bleeding risk to fact sheets for Johnson & Johnson’s COVID-19 vaccine. Administrators and recipients of the J&J vaccine in the United States were already warned that some people who have received the shot have been diagnosed with thrombosis with thrombocytopenia syndrome, or low blood platelet levels combined with blood clotting. http://www.theepochtimes.com/fda-strengthens-warning.

            Center for Disease Control and Prevention (CDC) Director Dr. Rochelle Walensky’s recent comments on COVID-19 deaths were that an overwhelming number of deaths, 75 percent, occurred in people who had four or more comorbidities.

“So really, these are people who were unwell to begin with,” Walensky said; a recent study from the agency that looked at the more than 1.2 million persons who completed primary vaccination during December 2020–October 2021 found that 78 percent of the people to die from COVID-19 after receiving the vaccine had at least four other underlying health conditions. It also found that, in all deaths, the patient had at least one other risk factor. www.gma.com, January 7, 2022, "Who Completed a Primary COVID-19 Vaccination Series — 465 Health Care Facilities, United States, December 2020–October 2021, Weekly / January 7, 2022 / 71(1);19–25," https://www.cdc.gov/mmwr/volumes/71/wr/mm7101a4.htm?s_cid=mm7101a4_w.

            Just a few of the other highly-affected institutions are FMC Rochester, FPC Duluth, Danbury, Elkton, Oakdale, Tallhassee, Yankton, Atlanta, Loretto, Terminal Island, Pekin, Waseca, Yazoo City, Beaumont, Forrest City Low, FCI Safford, Coleman, Ft Dix, FPC Mariana, and Greenville, among others all with multiple units locked down.

            Senator Tom Cotton, no friend of prisoners as you know, introduced S. 3481

in the US Senate on January 12, the "Preventing Violence Against Female Inmates Act of 2022,"  "A bill to secure the dignity and safety of incarcerated women,"  which mandates that only prisoners of the same biological sex, rather than declared sexual identification, can be housed together.

            FSA also broadened the possibility of elderly release, which would be further expanded by legislation pending in Congress. Under the current program, an elderly inmate must be at least 60 years old, and must have served at least two-thirds of their total prison sentence, have no violence in their background and be considered low risk. The  pending S.312 - COVID–19 Safer Detention Act of 2021, introduced by Senator Dick Durbin, drops the time-served portion to 50%, and expands the Compassionate Release criteria to make approval easier. Durbin's bill has multiple co-sponsors, and strong bipartisan backing, and I give it a good chance of passage.

In the circuits, in US v. Smith, 20-12667, (11th Cir. 1-12-22), Smith,  a software engineer, obtained the coordinates of artificial fishing reefs in the Gulf of Mexico from a website owned by StrikeLines, a Florida business. Smith remained in Mobile, Alabama while posting information about the reef coordinates on Facebook. Smith initially agreed to remove the posts and to assist Strikelines with its security issues in exchange for additional coordinates but communications broke down. StrikeLines contacted law enforcement. Officers executed a search warrant and found StrikeLines’s coordinates and other customer and sales data on Smith’s devices.           Smith was charged in the Northern District of Florida with violation of the Computer Fraud and Abuse Act, 18 U.S.C. 1030(a)(2)(C), (c)(2)(B)(iii), theft of trade secrets, and transmitting a threat through interstate commerce with intent to extort. Smith argued that venue was improper because all the prohibited conduct occurred in the Alabama and the data that was accessed and obtained was in the Middle District of Florida. Smith was convicted on the trade secrets and extortion counts in the Northern District of Florida. The Eleventh Circuit vacated Smith’s trade secrets conviction and related sentencing enhancements for lack of venue, affirmed the extortion conviction and related sentencing enhancements, and remanded. Smith never committed any essential conduct for the trade secrets conviction in the Northern District of Florida. Sufficient evidence supported the extortion conviction.

Every man is somebody, because he is a child of God: Dr. Martin Luther King, Jr.   Be not afraid, and let not your heart be troubled.   Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), 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."

Director of BOP Resigns, and Guards Union Head Says, "Good Riddance." Omicron Has Arrived in BOP

 

Federal Prison Director Resigns Under Firestorm of Criticism, More Departures Imminent; January 24 the New Date for First Step Sentencing Credits-Finally; Curious Lack of Food, Cleaning Supplies, and Commissary Continues; OMICRON Spreads Throughout Federal Prison System, and the Country;    Appellate Updates

 

by Derek Gilna

 

            In a statement on Wednesday, the Department of Justice (DOJ) said the federal prison director informed Attorney General Merrick Garland of his pending resignation. 

The department said he will remain in his position until his successor is named, according to The Associated Press. Its report also revealed that more than 100 federal prison workers have been arrested, convicted or sentenced for crimes committed since 2019, and highlighted the rapid spread of COVID-19 inside federal prisons as well as dozens of escapes, deaths and staffing issues that led to poor responses to emergencies. Although Congress was highly critical of him, the correctional officer's dismay of their working conditions and health also played a part in his departure. Jose Rojas, a leader of the federal correctional officers' union,  summed up his feelings  thusly: "Good riddance."

            Your cards, letters, and emails directed to your Congressional representatives helped provide the impetus for an unusually blunt letter from dozens of them to DOJ:

"Many instances of physical and psychological abuse, denial of medical care, 24-hour solitary confinement, denial of basic personal hygiene, denial of access to legal counsel, destruction of records, and general abuse of rights and mandated standards for prisoners have been brought to our attention. Constitutionalist Republicans in Congress will not stand idly by and allow these atrocities to continue. We promise you... those responsible within BOP will be held to account."

            After stalling and providing misinformation and misdirection to Congress, its own employees, and federal prisoners, DOJ has said it will comply with a firm January 24 deadline for applying applicable First Step Sentence Credits. Unfortunately, as with all DOJ prison programs, you can count on this being a huge mess. The good news is that the agency can now be compelled to give you the time credits with a court filing. I see no point in delaying your sentence credits, which in some instances would bring about  an immediate release.  I would be happy to handle this for you..

            But first, why are certain prisons, specifically Carswell, but not only them, running low on cleaning supplies, soap, hygiene products, and commissary items? This development could not come at a worse time, given the spread of OMICRON throughout the country. Weakened by previous bouts with the disease, prisoners with untreated pre-existing conditions, "Long Covid," substandard diets, and individuals with at least one co-morbidity are much more susceptible to death from OMICRON. Unfortunately, the system is probably unable to attain even the low levels of response that it did in 2020, due to misallocation of resources, short staffing, and poor leadership from Washington.

            Although OMICRON appears to be less deadly to a relatively healthy individual, it strikes vaccinated and unvaccinated alike. It also provides a convenient excuse for postponing testing and treatment of prisoners who did not come  into the system in good health, and face a risk of mortality based upon lack of (or no) treatment.   Although this is also a problem in the outside world, the situation in federal prisons for thousands of vulnerable individuals is dire. After a months-long pause, the deaths from OMICRON have begun, at Carswell and Alderson (and elsewhere). And to add to the misery, obsolete facilities such as Forrest City, and Carswell, already full of untreated mold,  have suffered mechanical failures, filling cells with sewage.

            Contrary to the pronouncements of ill-informed judges, OMICRON is a serious threat to the incarcerated. . Omicron is "making people really sick in a different way" compared to the original virus, a leading ER doctor has said Dr. Craig Spencer, an associate professor in Emergency Medicine at the Columbia University Medical Center, noted that fewer patients were "gasping for air" and requiring oxygen, unlike the first wave in March 2020. "But there's just SO much of it and it's impacting patients in different ways," Spencer said, referring to his experience during an ER shift in New York City.

            Spencer said "record numbers" of people with COVID-19 were attending the ER, as well as "extremely high" numbers of non-COVID-19 patients. "During the first surge, COVID was the only thing we saw in our ERs," he said, stating that it  is making preexisting medical conditions worse. For example, it could trigger a life-threatening condition, called diabetic ketoacidosis, in people with diabetes, he said, and older people with  can become too weak to get out of bed, can't walk and can't leave hospital.

"What's also different now is those COVID cases are often in beds next to patients who've done everything to avoid the virus, and for whom an infection might have a dramatic toll," Spencer added. "The cancer patient on chemotherapy. Those immunocompromised or severely sick with something else." https://twitter.com/Scott_A_Spencer/status. More discussion of this at: https://www.businessinsider.com/omicron-variant-covid-making-people-sick-different-emergency-room-doctor-2022-1.

            Evolving science has also blown a hole in the DOJ and some circuit's pronouncement that vaccination prevents infections. The CDC and every major study and paper issued on the subject indicates that vaccination only lessens symptoms, but does not eliminate the possibility of infection or death in the vulnerable. Unfortunately, all reputable studies show that natural immunity, only obtained after having had the disease, is vastly superior to temporary immunity conferred by vaccination. This natural immunity is NOT as strong in those who are already suffering from a chronic disease. COVID.CDC.gov, COVID Cases in the US Reported to the CDC.   Once again, it is absolutely imperative if you wish to go forward with a compassionate release petition, or wish to refile based upon increasing infections in your institution, that you need someone with ready access to this data and a willingness to make strong argument.

            Federal prisoners should be on the lookout for these signs of lung cancer: "A new cough that's persistent or worsens, Coughing that produces blood. Chest, back, or shoulder pain while laughing or coughing, Shortness of breath, Unexplained weight loss, Loss of appetite, Feeling weak or tired, Lung infections." You are considered high-risk if you were a smoker, exposed to second hand smoke, or exposed to Radon. www.americancancersociety.com.

            Alderson, Carswell, Aliceville,  Ashland, Waseca, Milan, Forrest City, Milan, Schuylkill FCI, Terre Haute, Bastrop, Duluth, FMC Rochester, Lexington, Lompoc, Victorville, Ft Dix, Englewood, Edgefield, and others, are inundated with OMICRON, with cases sometimes in the hundreds, either diagnosed or undiagnosed. Treatment, of course, has been limited to those in extreme distress, and testing is rare.

In the circuits, in Campbell v. US, 20-4256, (4th Cir. January 7, 2022,) Campbell, convicted of possession with intent to distribute opiates, 21 U.S.C. 841(a)(1), 841(b)(1)(C), received an enhanced sentence as a career offender, U.S.S.G. 4B1.1. The district court identified only two predicate “controlled substance offense[s]” justifying the enhancement: a West Virginia conviction for delivery of crack cocaine in violation of a statute that criminalizes attempt offenses, and a federal conviction for aiding and abetting the distribution of cocaine base within 1,000 feet of a school. The career offender enhancement increased Campbell’s recommended imprisonment range from 63-78 months to 210-240 months. Campbell objected, arguing that the Sentencing Guidelines did not include attempt crimes within its definition of “controlled substance offense.” The Fourth Circuit vacated Campbell’s 180-month sentence. The plain text of U.S.S.G. 4B1.2(b) is inconsistent with the Commission’s Commentary to that Guideline, and the only “reasonable construction of” U.S.S.G. 4B1.2(b) is that “controlled substance offense” does not include an "attempt" crime. Campbell’s West Virginia conviction is not a controlled substance offense and so cannot support a career offender sentence enhancement.              In  Blake v. US, 20-2145,  (7th Cir. January 4, 2022,) based on his 2007 convictions, Blake is serving a sentence of 420 months’ imprisonment for cocaine offenses, 21 U.S.C. 846, 841. The Seventh Circuit affirmed his sentence. Five years later, the court rejected Blake’s effort to set aside his sentence on collateral review under 28 U.S.C. 2255. Blake was sentenced before the Fair Sentencing Act of 2010 amended the statutes and Sentencing Guidelines for persons convicted of crack cocaine offenses. The First Step Act of 2018 made the 2010 Act retroactively applicable. The district judge concluded that Blake, who has a history of violence, does not deserve a benefit from the 2018 Act. After allowing his attorney to withdraw, the Seventh Circuit vacated the denial of Blake’s motion. The district court sidestepped the parties’ dispute about the quantity of drugs attributable to Blake for sentencing purposes and never calculated the retroactively lowered range under the Sentencing Guidelines. At the time, the court did not have the benefit of the Seventh Circuit’s 2020 holding that a district court commits reversible procedural error by making a discretionary decision.              “The future belongs to those who believe in the beauty of their dreams.” ELEANOR ROOSEVELT   Be not afraid, and lot not your heart be troubled.   Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

BOP Warning Lights Blinking Red; Personnel Shortages and Shoddy Medical Continue in 2022

 

Supreme Court and Congress Back in Session; Pending Legislation Update; Compassionate Release Updates;  Covid Spreads in Federal Prisons, and Leadership Has "No Master Plan" to Stop It; Take Responsibility for Your own Health and Rehabilitation; Important Case Updates

 

by Derek Gilna

 

            The Supreme Court (SC) officially returns to work this week, and Chief Justice John Roberts was already playing defense in response to an extensive (and damaging) investigation of direct financial conflicts of interest (already forbidden by law)  by over 100 federal judges, which might result in new legislative oversight. Many judges have already recused themselves from pending matters.  Query:   What of those cases where the judge deciding a civil (or criminal) case came directly from the industry affected (or instigating) the criminal complaint?

            Meanwhile, there are a host of critical cases already argued or due to be argued shortly, with direct impacts on the currently incarcerated. It's an open secret that the feds

have targeted physicians unaffiliated with a major hospital for drug prosecutions, and several of these cases have found their way to the high court.

            The first two, Ruan v. US, No. 20-1410, and Kahn v. US, No. 21-5261, ask 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. Other similar cases are also anticipated to find their way to the SC.

            These cases are just the latest chapter in federal scapegoating blaming "small fish" for the misconduct of a wealthy and politically influential industry, in this instance the major drug manufacturers. (See: real estate collapse of 2007-08 that almost tanked the economy-no banks or financiers charged, only smaller developers.)

             In the pending SC case of US v. Taylor, out of the 4th Cir., the question presented is whether 18 U.S.C. 924(c)(3)(A)'s definition of "crime of violence" excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. 1951(a). Another pending case is Thacker v. US, 21-877, which asks whether a district court may consider the 2018 amendment to the sentences mandated under 924(c) in determining whether a defendant has shown extraordinary and compelling reasons warranting a sentence reduction under 3582(c)(1)(A)(i). Of course, still pending approval for the court's docket is US v Jarvis, 21-568, which asks whether non-retroactive changes in federal law can serve as “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).

            Now that "Build Back Better" is DOA, Congress is free to focus on the many pending sentence relief bills. The Senate Judiciary Committee has approved three bills co-sponsored by Durbin and Grassley.  The first would give inmates the ability to petition for the sentencing changes established in 2018 to apply retroactively, among other provisions.  The second would prohibit a judge from considering any conduct for which a defendant was acquitted in sentencing. Finally, the third would expand eligibility for a program that allows elderly prisoners to serve out the remainder of their sentences at home.  That measure also includes a provision that would allow vulnerability to Covid-19 to qualify as a reason for compassionate release. I like the chances of all three pieces of legislation, and will report on their progress. House Democratic Caucus Chair Hakeem Jeffries (D-N.Y.), rumored to be the 81-year old Nancy Pelosi's eventual successor as Democratic leader,  said that he expects both chambers will "be moving a series of bipartisan criminal justice reform bills.

            In every court compassionate release court petition I have worked with or read, the government always cites its "Master Plan," that was in place in January of 2020-you know, when the G was saying "wear a mask," " don't wear a mask," "wear two masks, " etc.   (You cannot make this stuff up. ) A cynic would say, "If their lips are moving, they are lying," but I think it is more like, "We have no idea what to do, so we are making it up." That is the only explanation for the "mix and match" (of infected and uninfected) strategy that has unfolded at Alderson, Aliceville, Carswell, MCC Chicago, Lexington,  Mariana, Atlanta. Duluth, Milan, Terre Haute, Waseca, Bryan, FCI Florence, Tallahassee, Yazoo City,  (Allenwood-two fatalities) and others, with most with well over 100 positives, and many more undiagnosed.   Testing has pretty much come to a standstill, probably because there is a shortage of tests nationwide ( compounded by lack of sufficient cleaning supplies and staff not wanting to report accurate numbers)  but another problem is that short-staffed institutions are not serving national-menu sanctioned meals, nor are the commissaries currently well-stocked. It is a perfect storm of deprivation, born of incompetence and lack of accountability. . "This is why our agency is broken," said Joe Rojas, a union leader who works at the Coleman prison complex in Florida. "You have people who are unqualified and you have a medical pandemic, but the leadership has zero medical background." www.themarshallproject.org.

            The Delta variant, which had been the dominant strain in the past few months, accounts for 41.1 percent of all U.S. COVID-19 cases as of Dec. 25, the CDC public health agency’s data projections showed. “Setting aside the question of how the initial estimate was so inaccurate, if CDC’s new estimate of Omicron prevalence is precise, then it suggests that a good portion of the current hospitalizations we’re seeing from COVID may still be driven by Delta infections,” former Food and Drug Administration (FDA) Commissioner Scott Gottlieb said on Tuesday. www.cdc.gov.

I strongly recommend that you monitor your own health carefully, as the prison medical system warning lights are all blinking red. Few outside trips for specialized tests or treatment are occurring, and there are many undiagnosed serious illnesses, including terminal cancer, organ failure, and cardiac and blood pressure issues that are not being noted on medical records, as a result of negligence, or-hopefully not-policy, perhaps to reduce expenses. If there are unexplained pains, bleeding, dizziness, or other noticeable changes to your health, complain and document, and let your advocates know.             In US v Sharp, 20-12574, (11th Cir. 12-21),  the Eleventh Circuit vacated defendant's 110-month sentence for possessing a firearm as a convicted felon. The court held that the government did not waive its argument that defendant's conviction qualified as a predicate crime of violence under the Armed Career Criminal Act (ACCA), where, as here, the argument was foreclosed by binding precedent at the time of sentencing and the change in law occurred within the time to file a notice of appeal. Therefore, the court need not determine whether a conviction for robbery under Georgia law is an ACCA predicate offense. Accordingly, the court remanded for resentencing.           In the case of Rucker v. Giffin, 997 F/3d 88 (2d Cir. 2021), in a federal appeal of a state case dismiss for failure to exhaust administrative remedies, the court held that the Petitioner's medical condition, which prevented him from following the proper schedule for filing, was excused by his condition, and the prison must accommodate his illness or disability, reversed and remanded.    Do the best you can until you know better. Then when you know better, do better." MAYA ANGELOU   Be not afraid, and lot not your heart be troubled.   Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."