Biden Still Has Granted And Clemencies, But At Least Will Not Return CARES Releasees to Prison, While Alderson Suffers

 

Biden Agrees that CARES Act Recipients Won't Return to Prison; Supreme Court and Congress Off Until New Year;  DOJ COVID Response to DELTA and OMICRON Repeats Mistakes of "Action Plan;" Alderson COVID Outbreak Gets National Coverage;  Studies From UK and Israel Show Vaccinations and Boosters Only Reduce  Omicron Infections for two Months;  Case Updates

 

by Derek Gilna

 

            The White House gave in to intense pressure this past week and agreed that individuals released under the CARES Act would not be returned to prison and would continue serving out their sentences at home, and  indicated that it will probably also grant them clemency. This move received no criticism, which bodes well for future sentence reform initiatives. You will recall that Congress introduced legislation earlier in December to reform the federal clemency process, in response to Biden granting ZERO clemencies in his first twelve months. 

            Alderson prison's COVID outbreak made the local and national news, as the number of COVID infections continues to force the shutdown of all but basic operations, with multiple living units forced into quarantine. Local television and newspaper coverage has done their best to penetrate the veil of secrecy of the federal government's most publicity-adverse institution, and even Forbes magazine, read by opinion leaders (including federal judges) highlighted in excruciating detail the scope of the problem and the lack of a meaningful response.

            It is noteworthy that although the federal government and certain cities and states have either instituted lockdowns or issued sweeping vaccination requirements for public events, there appears little urgency in DOJ to offer vaccinations or special treatment to the infected at Alderson or elsewhere, which tells me that although it cannot state so publicly, it does not fear OMICRON. Perhaps it should, as there have been at least two verified deaths, one at Alderson, and one at Carswell, in which COVID played a role.

            And it's not just Alderson and Carswell. Covid is at Lexington Atwood Satellite Camp for Women, with at least 40 women ill. Multiple cases and quarantines at FCI Dublin and FPC Bryan, with little testing, and nothing reflected on the website.

            In Israel, which shut its borders to foreign travelers, and the UK, which has skyrocketing totals of OMICRON infections, statistics show that the vaccinated and unvaccinated contract OMICRON at similar rates, and that even the booster shots gives only 50 to 80% immunity for approximately 60 days. However, here is the problem: in the outside world, infected people get needed medical attention eventually, and have at least some health care options. Prisons are full of elderly, and often frail people, whose health is often poor to start with, and who may still be battling complications from a previous bout with COVID. 

            The other noteworthy development is that government funded studies in the UK and Israel show that the vaccines are not as effective (like the yearly flu vaccine?) as advertised. https://www.timesofisrael.com/israeli-study-finds-2-pfizer-shots-fail-to-neutralize-omicron, December 21. 2021. A report published Friday by the UK government agency Public Health England reveals individuals who received a COVID-19 vaccine are more than three times more likely to die from the Delta variant than unvaccinated people. A briefing titled, “SARS-CoV-2 variants of concern and variants under investigation in England,” examined all currently known variants of COVID-19. Regarding the most dangerous variant,  Delta, the UK government admits vaccinated people are 3.25 times more likely to die than those who did not take the experimental shot. Out of 117 total deaths occurring within 28 days of infection, 44 of them were unvaccinated individuals. www.gov.uk/phe.

            Expert advisers to the Centers for Disease Control and Prevention will meet to discuss what federal health officials see as a concerning increase in the rates of a rare but serious blood clotting disorder linked to Johnson & Johnson’s coronavirus vaccine.

The Advisory Committee on Immunization Practices will see new data at the meeting that shows elevated risks of the condition in men and women, according to one federal official, setting the stage for the experts to possibly recommend new restrictions on the use of the vaccine. Among the women who were diagnosed with the syndrome, which can impair clotting and cause internal bleeding, about one in seven of them died, the F.D.A. said. www.cdc.gov. 12-21-21.

            So when all is said and done, you have to advocate for your own health care. As I have previous noted,  request and retain all medical records, receipts, and labels off medication and prescriptions, keep a diary of all interactions with prison medical staff and outside medical providers, send emails to all prison medical personnel documenting your current medical condition, treatment (or lack of it), how you feel, and what treatment that you requested, but  didn't get.

            When Congress returns from its holiday break, my suspicion is that members will find their email inboxes jammed with messages from the public demanding action to resolve this metastasizing humanitarian crisis, while prison populations begin to move upward once again.  Meanwhile, prison staff are heading for the exits, regardless of retirement status, with some prisons like Florence, operating with one-third fewer employees, and requiring mandatory overtime to maintain operations. Only 13,762 of the 20,446 full-time federal correctional officer positions across the country were filled in May, according to the Associated Press. The continued staffing shortages and several high-profile cases of officer misconduct led the chairman of the Senate Judiciary Committee in November to call for the firing of the prison bureau’s director.

In the circuits, in US v. Capers,  17-1836, (2d CIr. December 14, 2021), the

defendant appealed his 42 year sentence imposed after his conviction by a jury of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), conspiracy to distribute narcotics, and murder through the use of a firearm during a crime of violence or drug trafficking crime. The Second Circuit agreed with defendant that, under binding precedent from the Supreme Court, RICO conspiracy is not a crime of violence for purposes of 18 U.S.C. 924(j). The court explained that, because it is unclear whether the jury based its decision to convict defendant of the firearm-murder offense on the erroneous belief, in light of the trial court's instruction, that RICO conspiracy is such a crime, defendant's conviction of that offense must be vacated. The court otherwise affirmed the district court's judgment and remanded for further proceedings.        In US v Davis, 20-2895, (8th Cir. December 13, 2021) the Eighth Circuit affirmed the district court's grant of defendant's motion for modification of his sentence under the First Step Act and imposition of a reduced term of imprisonment. Defendant argues that the district court should have reduced his sentence to time served. The court concluded that the district court did not abuse its discretion in assessing the appropriate reduction where it considered the 18 U.S.C. 3553(a) sentencing factors and explained that a sentence reduction to 454 months satisfied the purposes of sentencing.         In US v. Sincleair, 20-10495, (5th Cir. 2021), Sincleair appealed the application of a two-point firearm sentencing enhancement to his offense level under U.S.S.G. § 2D1.1(b)(1). He pled guilty without a plea agreement to one count of conspiracy to possess a controlled substance with the  intent to distribute it under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Over Sincleair’s objection, the district court applied a two-level firearm possession enhancement under U.S.S.G. § 2D1.1(b)(1) because a firearm was present at the locations where the drug transactions occurred. Sincleair appealed. The Fifth Circuit reversed and remanded for resentencing. The record is insufficient to support the firearm enhancement because the PSR did not include sufficient facts to establish a temporal and spatial relationship between Sincleair, the gun, and the drug trafficking activity. Sincleair was not shown to have any connection to or knowledge of the gun, and the district court failed to make a record of what its rationale may have been supporting the enhancement.   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."

BOP Again Subjects Alderson and Waseca To Discredited "Herd Immunity" Shock Treatment, Resulting in Death and Hospitalizations

 

Don't Sit on Your Remedies:   The Important of 2255's; Sixth Circuit Reverses District Court Denials of Compassionate Release; Eighth Circuit Affirms Downward Departure for Non-Contact SO; Alderson Prisoner Dies, Others Hospitalized, as COVID Rages; Chicken Pox at Ft Dix; More Studies Question Long-Term Effectiveness of Current Vaccines; Case Updates

 

by Derek Gilna

 

           With all of the concern over COVID in prisons, it is easy to let important potential avenue to relief go unaddressed. I am referring to Section 2255 , or habeas, petitions, which allege inadequate representation counsel as an avenue to get a new, lower sentence. If you are still on direct appeal, or completed it in the past ear, you should seriously consider this as a form of relief.   We can help.

             In US v. Estrada-Elias, No. 21-5680 (6th Cir. Nov. 24, 2021), that court noted that,  "Horacio Raul Estrada-Elias, a ninety-year-old man suffering from a terminal illness (congestive heart failure, atrial fibrillation and chronic kidney disease),  appeals the district court’s order denying his motion for compassionate release filed pursuant to 28 U.S.C. § 3582(c)(1)(A)(i).  Estrada-Elias has spent fifteen years in prison for conspiracy to distribute marijuana.  Because of his illness, Estrada-Elias is bedridden.  He has never been convicted of a violent crime and has not received a single disciplinary infraction in prison.  The warden of the prison in which Estrada-Elias is incarcerated agrees that Estrada-Elias should be released from custody...the district court denied his compassionate-release motion, finding that life in prison is “the only sentence that would be appropriate and that would protect the public” from this ninety-year-old terminally ill grandfather. We hold that the district court abused its discretion in denying Estrada-Elias’s compassionate-release motion."

            In US v. Davis, No. 21-1283 (8th Cir. Dec. 20, 2021), Fredrick M. Davis, a decorated US combat veteran,  pled guilty to attempted coercion or enticement of a minor (who was in fact a law-enforcement officer) in violation of 18 U.S.C. § 2422(a).  The district court sentenced him to time served and 120 months’ supervised release, including one year of home confinement. The United States appeals the below-guidelines sentence. The government objected to the sentence for failing to afford adequate deterrent effect (the district court noted the objection).  But a district court has “wide latitude” to weigh factors, and it “may give some factors less weight than a [party] prefers or more weight to other factors, but that alone does not justify reversal.

            In the U.S., where places were tightening restrictions, canceling holiday gatherings and bracing for a new surge, President Biden on Tuesday plans to deliver remarks on the status of the country’s fight against Covid-19, as the U.S. sees rising cases.

            The United Kingdom, which has a higher percentage of "fully-vaccinated" individuals than the US, (90% versus 60%) has been hit hard by the new OMICRON Variant, and new studies show a disturbing trend: although the vaccines have slowed the DELTA variant, they have minimal effectiveness against OMICRON, which spreads more quickly, and is just as deadly.   Thus, the UK has rushed to offer boosters, and US has belatedly done the same. This raises some serious questions, which appellate courts will have to consider moving forward.

            "Two doses of the Oxford-AstraZeneca or Pfizer-BioNTech Covid-19 vaccines are substantially less effective at warding off omicron compared to previous variants of the coronavirus, scientists have found...In a new study..., researchers from the University of Oxford tested blood samples of people 28 days after their second dose of either vaccine. When omicron was introduced to those samples, scientists reported 'a substantial fall' in the neutralizing antibodies that fight off Covid compared to the immune responses seen against earlier variants."  https://www.medrxiv.org/content/10.1101/2021.12.10.21267534v1. In other words, no boosters, no effectiveness.    This explains why the study that showed vaccinated people in a Texas federal prisoner were as likely, if not more likely, to be infected.

 Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison — Texas, July–August 2021

On September 21, 2021, this report was posted as an MMWR Early Release on the MMWR website (https://www.cdc.gov/mmwr). This means that merely being vaccinated does not make one immune from serious illness or death from COVID or one of its variants.

            The experience in highly-vaccinated Israel is also instructive for the US. Even though Israel technically reached  "herd-immunity" months ago, infections continue to rise among both vaccinated and unvaccinated. Apparently with these fast-mutating and highly adaptive viruses, there is no such thing as "herd-immunity." https://www.washingtonpost.com/politics/2021/07/19, https://www.deseret.com/coronavirus/2021/7/20/22584134/whats-going-on-in-israels-outbreak-among-vaccinated-people. More and more researchers are raising the possibility that the pace of vaccinations is in fact reducing the body's natural defenses, making it more prone to future infection. More on this in the future.  

            This brings us to the situation at Alderson, and Waseca, where it once again appears the plan of DOJ is to achieve herd immunity by mixing the infected and uninfected, and accepting the consequences, which so far means at least one verified death, multiple hospitalizations, with some intubations, and well over 100 ill in each location, and many more with less serious  symptoms. In the meantime, boosters are in short supply, and not available in places like Oakdale, an original hotbed of infection in 2020. (So much for that "Master Plan.")

            As to 2255's, the case of US v Flores-Rivera, 18-1963, (1st Cir. 2021) reversed a district court’s order denying defendant’s motion to vacate sentence and conviction under 28 USC 2255. The defendant’s appellate attorney had been ineffective for failure to raise a Brady claim, raised by all of her co-defendants on appeal, based on the government’s failure to disclose material that would have undermined the  government witnesses’ credibility.

            The First Circuit held that “any reasonable attorney would have known of the availability of the Brady claim since the co-defendants all raised it and since trial counsel had preserved the issue by raising it in his motion for new trial.” Following a jury trial, it came to light that the Government had failed to disclose Brady material about the credibility of its key witnesses in the case. All of Flores-Rivera’s co-defendants raised this issue on appeal, and the First Circuit vacated their convictions and remanded their cases for new trials. Flores-Rivera’s appellate attorney, however, did not raise that ground, and her own appeal was denied.  She then filed a motion to vacate her conviction and sentence under 28 U.S.C. § 2255, arguing that her appellate council was ineffective for failing to raise the Brady claim. The district court denied the motion, and she appealed.

          The court noted that any reasonable attorney would have known of the availability of the Brady claim since the co-defendants all raised it and since trial counsel had preserved the issue by raising it in his motion for new trial. Forgoing this obvious and strong claim in favor of the paltry ones that were raised was a choice resembling “rejecting a lifeboat in favor of two lily pads” and could not be considered valid strategy.

            In US v. Nasir, 18-2888 (3d Cir. 2020), (3rd Cir. 2020), Nasir was convicted of maintaining a drug-involved premises under 21 U.S.C. § 856(a)(1); possession of marijuana with intent to distribute under 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); and being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court held him to be a career offender based on two state-level predicate drug offenses, and sentenced him to 210 months in prison.                                                                       Nasir appealed, and, in its first ruling on his case, the Third Circuit sitting en banc vacated his firearms conviction under Rehaif and also remanded for resentencing on all charges, holding that the career-offender enhancement was not properly applied. The Government then sought and obtained certiorari to the Supreme Court, which vacated the judgment in light of the intervening decision in Greer—where the Court had held that Rehaif errors can only be a basis for plain-error relief if the defendant can show that they would have presented evidence at trial that they were unaware of their felon status.

            On remand from the Supreme Court decision, the Third Circuit affirmed all of Nasir’s convictions but still remanded for resentencing, reiterating its prior ruling that he did not qualify for the career-offender enhancement. The plain language of the guidelines does not include inchoate “attempt” drug crimes like the one that was used as one of Nasir’s predicate offenses.

            In US v McCall,  21-3400, (6th Cir. December 17, 2021), the conservative circuit granted relief to David McCall, who pleaded guilty to a conspiracy charge involving heroin possession and distribution in 2015, moved for compassionate release. He cited three “extraordinary and compelling circumstances” warranting his release: the COVID-19 pandemic, his rehabilitation efforts, and the fact that, under this court’s decision in United States v. Havis, he would have received a much shorter sentence. The district court acted as if it could not consider these factors, either alone or in tandem. "Because our binding precedent says otherwise, we REVERSE the district court’s judgment and REMAND for further proceedings consistent with this opinion."

            Over the weekend, Biden's "Build Back Better" bill appears to have failed, which means that the many pending sentencing reform bills will not have to contend with a piece of legislation which tied up both chambers for months. We also eagerly anticipate the DOJ publication of its time credit policy in the new year, to see if 2241's will have to be filed to enforce the clear purpose of First Step in this area. There are currently no bills pending reducing sentences to 65% of time served, but the bills that are pending should prove promising.

 

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."

Supreme Court Hears Two Cases That would Have Positive Impact on Sentence Reform

 

Supreme Court Deliberations Should Positively Impact Criminal Justice; Congress Proposes Clemency Reform; DOJ Repeats Past Mistakes with OMICRON, New Covid Studies; Updates

 

by Derek Gilna

 

            As Christmas and New Years approach, there are many positive developments in federal criminal justice. There is no question that some cases pending in the US Supreme Court will have a good impact on prisoners' criminal justice options.   In addition to Jarvis, the Court is considering United States v. Taylor, argued this past Tuesday,  a case about how to define a violent crime. After 90 minutes of debate, the justices clearly  struggled to solve a statutory puzzle involving attempted robbery, threats of violence, and two federal laws with expansive language. In the end, the case may turn on a question that seems more philosophical than legal: Is it possible for a would-be criminal to attempt to threaten physical force but stop short of making any actual threat?

            One of the methods to reduce sentences is a 2255 habeas filing, which focuses on the issue of inadequate representation of counsel in federal court. However, Shinn v. Ramirez and Jones, argued on Wednesday, may focus needed attention on the problem. These are two death penalty cases that will determine whether prisoners may develop new evidence to support claims that their lawyers were constitutionally ineffective at trial. The argument was notable because a surprising group of justices appeared to struggle with the legal issue at the heart of the case – repeatedly calling it “rather odd,” “very odd,” “close,” and “really a tough case.”

             In particular, a trio of conservatives – Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh – seemed sympathetic to both sides and at times wondered aloud how they should even approach deciding the issue. As Roberts put it, what should the court do in a situation where “the plain language” of a statute “seems to require one result,” while “the plainly logical meaning of a subsequent precedent” seems to require the opposite? Although this matter involves a state criminal case, it will be interested to see if the court's opinion is useful to future litigants on the federal level who wish to file 2255 petitions.

            Congressional sentence-reform supporters  filed the  "FIX Clemency Act," introduced Friday by Rep. Ayanna Pressley, a Democrat from Massachusetts,  which calls for a nine-person board that would be responsible for reviewing petitions for clemency and issuing recommendations directly to the president. The recommendations would also be made public in an annual report to Congress. At least one member of the panel would be someone who was previously incarcerated.

            "Clemency works, but the current system is broken and denies thousands of people the chance of redemption and justice," Pressley said. "It is long overdue that the president uses his clemency authority to address the generations of systemic injustices that have created the mass incarceration crisis," she said, arguing that her bill was a "critical" part of that effort. Continue to consider a clemency filing if you are eligible to do so.

            The Congressional has officially spilled into "overtime," as it extends sessions into this week in an attempt to pass "Build Back Better," Biden's budget-busting proposal, which appears destined to fail. Although the President has threatened to extend the session to Christmas, it won't be happening.   Thus, all pending sentence reform legislation will be pushed into 2022, where these important bills should receive the time and attention that they deserves.

            While certain states continue to impose a mask mandate, and federal employees have been ordered to vaccinate or risk termination, the guards union continues to resist. It is clear that Biden's DOJ will not enforce that mandate in federal prison, other than to use it as a way to give shots to people to block possible CARES eligibility. Ironically, as long as guards continue to resist mask usage and vaccination, CARES releases will continue. OMICRON, DELTA, and all other forms of COVID continue to make themselves at home in federal prison, and DOJ appears powerless to stop it.

            In fairness to DOJ, federal "experts" are politically unwilling to state certain obvious scientific truths, which is that obese, diabetic, and high blood pressure sufferers  are particularly vulnerable. “The bottom line is, ‘Oh my god, indeed, the virus can infect fat cells directly,’” said Dr. Philipp Scherer, a scientist who studies fat cells at UT Southwestern Medical Center in Dallas, who was not involved in the research.

“Whatever happens in fat doesn’t stay in fat,” he added. “It affects the neighboring tissues as well.”

            The study’s senior authors, Dr. Tracey McLaughlin and Dr. Catherine Blish of the Stanford University School of Medicine, suggested the evidence could point to new Covid treatments that target body fat.  “Maybe that’s the Achilles’ heel that the virus utilizes to evade our protective immune responses — by hiding in this place,” Dr. Vishwa Deep Dixit, a professor of comparative medicine and immunology at Yale School of Medicine, said.

            “This could well be contributing to severe disease,” Dr. Blish said. “We’re seeing the same inflammatory cytokines that I see in the blood of the really sick patients being produced in response to infection of those tissues." Body fat used to be thought of as inert, a form of storage. But scientists now know that the tissue is biologically active, producing hormones and immune-system proteins that act on other cells, promoting a state of nagging low-grade inflammation even when there is no infection.

Inflammation “The more fat mass, and in particular visceral fat mass, the worse your inflammatory response,” Dr. McLaughlin said, referring to the abdominal fat that surrounds internal organs. Fat tissue is composed mostly of fat cells, or adipocytes. It also contains pre-adipocytes, which mature into fat cells, and a variety of immune cells, including a type called adipose tissue macrophages.

            A man whose ideal weight is 170 pounds but who weighs 250 pounds is carrying a substantial amount of fat in which the virus may “hang out,” replicate and trigger a destructive immune system response, said Dr. David Kass, a professor of cardiology at Johns Hopkins. The data also suggest that Covid vaccines and treatments may need to take into account the patient’s weight and fat stores. “This paper is another wake-up call for the medical profession and public health to look more deeply into the issues of overweight and obese individuals, and the treatments and vaccines we’re giving them,” said Barry Popkin, a professor of nutrition at University of North Carolina at Chapel Hill, who has studied the heightened risk that Covid poses to those with obesity.  www.bioxiv.org, 10-24-21.

            Meanwhile, most prisons continue in a healthcare crisis, although DOJ has taken pains to conceal this fact from both prisoners, the public, and the media.  Continue to bombard your elected representatives as to the seriousness of the situation, since DOJ's response has been: "Nothing to see here."

            FMC Rochester, from multiple accounts, has multiple staff and prisoners infected. From Waseca, "they just told us, they have 137 but that does not include the 14 that left this unit today...there are still people that cant smell or taste..." Hazelton has multiple unconfirmed deaths. "Alderson now has three (of eight) complete units on full lockdown due to positive cases of COVID.... three units outside of the three (two incoming and one outgoing) quarantine units." Ashland also has a serious outbreak. An unconfirmed report from FCI medium facility Schuylkill, 447 infected inmate, with 1100 completed tests.

Another huge risk for chronically-ill prisoners, or those with undiagnosed wait times, is that Covid has given cover to prison health-car officials to delay diagnosis and outside trips.   From another managed-care environment, the United Kingdom, we have proof that this delay does not end well for patients. "The impact of fewer drugs and longer waits for care in Britain is reflected in the health outcomes data for cancer patients. In England, the overall cancer mortality rate in 2018 was 266 per 100,000 people – 68% higher than the U.S. mortality rate of 158.3 per 100,000 people. These are the well-known results of centrally planned health care systems. When the government runs – and pays for – just about everything, bureaucrats and algorithms decide who deserves treatment. And some patients don’t make the cut." Sally C. Pipes,  president, CEO and Thomas W. Smith Fellow in health care policy at the Pacific Research Institute.www.buffalonews.com.             In the circuits,  in US v. Abdul-Ali,19-60694, (5th Cir.  December 10, 2021) the Fifth Circuit affirmed the district court's grant of defendant's motion to reduce his sentence under the First Step Act of 2018 from life to 40 years imprisonment. The court concluded that the district court did not abuse its discretion in reducing defendant's sentence where the district court noted that a significant prison term was still warranted based on his previous recidivism and the violence that accompanied his past crimes. The court stated that it has never held that courts must consider the 18 U.S.C. 3553(a) sentencing factors when assessing a sentence reduction under the Act. Finally, the court rejected defendant's argument that he was entitled to a hearing regarding his post-sentence behavior. Finally, the district court did not abuse its discretion in declining to reduce defendant's sentences for Counts One and Three, because the statutory penalties for those counts are not covered under the Act.    Be not afraid and let not your heart be troubled.   Derek Gilna, Director, JD, (De Paul, 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."

Momentum BUilds for Removal of BOP DIrector; Supreme Court Considers Jarvis case, Which Would Assist 924(c) Prisoners

 

Supreme Court Jarvis Case Seeks Reset of Federal 924(c) Sentencing; Signs Point to Probable Replacement of Prison Leadership;  ACLU Lawsuit Attacks Unequal CARES Treatment; Unfair Application of Deportation Statutes Under Judicial Review;  Appellate Updates

 

by Derek Gilna

 

            The Jarvis case currently pending before the US Supreme Court (SC) would eliminate many 924(c) sentencing issues, and has attracted as amicae supporters various criminal justice reform heavyweights, such as FAMM, and the NACDL, National Association of Criminal Defense Lawyers.   In their recent brief they argued, "The question presented is extraordinarily important...More systematic considerations—including the sheer number of people affected, the recognized injustice of sentence stacking under 18 U.S.C. § 924(c), and the prevalence of racial disparities in Section 924(c) sentences—confirm the question’s importance. In addition, the issue warrants review because a decision here may clarify when non-retroactive changes in federal law can be considered in assessing grounds for compassionate release."

            However, 924(c) relief will not succeed or fail only as a result of Jarvis.

The 2018 First Step Act codified  amendments to the statutorily required mandatory minimums for third drug offenses. See Pub. L. No. 115- 391, 132 Stat. 5194, § 401 (amending 21 U.S.C. § 841(b)(1)(A)).  Congress reduced the mandatory sentence for such an offense from life in prison to 25 years. See 21 U.S.C. § 841(b)(1)(A). It also modified what constitutes a qualifying prior drug offense—the term no longer covers any prior drug felony, but is instead now limited to “serious” drug felonies, narrowly defined. Id. § 841(b). These changes have resulted in drastic differences based on whether people were sentenced before or after passage of the First Step Act.

            There are clear indications that the obvious dysfunctionality of the decaying federal prison system has attracted the attention of DOJ and perhaps even Biden himself, as the Trump-era federal prison director remains under fire from Congress, the DOJ Inspector General, and families of prisoners who continue to bombard their  elected representatives with true stories of loved ones third-world conditions. Biden, who has been president for almost a year,  now owns the self-inflicted crisis, and unless changes are made, will pay a heavy political price for yet another example of his administration's bureaucratic incompetence.

            Nowhere has this bureaucratic incompetence and deliberate indifference been as obvious as what is now transpiring at Waseca and Alderson, two women's facilities previously ravaged by COVID cases, and populated by hundreds of "Long-COVID" sufferers. Waseca has more than 91 virus positives,  and Alderson has a similar number. However, I emphasize that there is virtually no facility that has not seen a new surge in cases.

            Complicating the situation is the federal prison guards unit resistance to a vaccine mandate, currently stayed by  federal court orders. As has been previously shown, mere vaccination, even if competently done with a non-expired vaccine, is no guarantee that you will not get infected (or reinfected.). Therefore, there are strong arguments refuting the government's default position that the vaccinated are safe and should not be eligible for compassionate release.           

            This American Civil Liberties Union and ACLU of the District of Columbia recently  filed a lawsuit against the Department of Justice and the federal prison system under the Freedom of Information Act, seeking information about the federal government’s potential plan to force people placed on home confinement under the CARES Act back to prison after the pandemic subsides, even if they have followed all requirements of home confinement, been reunited with their families, and successfully reintegrated into society. The information this lawsuit obtained will also shed light on why some institutions appear justified in failing to following DOJ CARES guidelines.

            In a case of importance to those who are not citizens of the US, the US Supreme Court, in United States v. Palomar-Santiago, No. 20-437 (May 24, 2021), ruled that as a matter of statutory interpretation (1) each of 8 U.S.C. § 1326(d)’s three requirements must be satisfied; and that (2) a showing by the defendant that the deportation proceeding was “fundamentally unfair” under § 1326(d)(3) — because the immigration judge (IJ) mistakenly told him that he was removable as an aggravated felon due to his DUI conviction (this became error six years later in Leocal v. Ashcroft, 543 U.S. 1 (2004), holding that a DUI is not a § 16(b) “crime of violence” and thus not an “aggravated felony”) – does not  by itself suffice to dismiss a reentry indictment. However, it further opens the door for petitions challenging those indictments.

          In a previous 9th Circuit case reported here, Gustavo Carrillo-Lopez, the defendant in the criminal case who was first charged under Section 1326 by the Department of Justice under President Donald Trump, filed a motion asking to dismiss the indictment against him. Carrillo-Lopez argued that Section 1326 was an unconstitutional violation of the Fifth Amendment 's equal protection guarantee.

In the circuits, in US v Lewis, 17-4737, ( 4th Cir., December 1, 2021), Lewis and two others robbed a pawnshop. Lewis pointed his firearm at the manager and struck him in the back of the head three times, causing him to fall to the floor. The robbers stole 28 firearms, more than $61,000 worth of jewelry, and $2,000 in cash. The police found a “red spot” on the back of the manager’s head, which was not bleeding. The manager felt “dizzy” and was taken to the hospital. His medical expenses totaled $3,676.92. Lewis pleaded guilty to conspiracy to commit Hobbs Act robbery, 18 U.S.C. 1951(a), Hobbs Act robbery, and brandishing a firearm in relation to a crime of violence, 18 U.S.C. 924(c).         The PSR recommended a two-level enhancement because a victim sustained bodily injury. Lewis objected that an injury must be “significant” to sustain the enhancement and that an injury must have “more than momentary consequences” to be “significant.” The district court “guess[ed]” that the manager had suffered a “mild concussion,” applied the enhancement and sentenced Lewis to 46 months followed by 84 months for Count III. The Fourth Circuit vacated. The court erred in imposing the injury enhancement. The prosecution failed to produce police reports, medical records, photographs, or testimony with respect to the injury to establish that the manager received more-than-precautionary medical attention, or that the manager’s injuries lasted for a “meaningful period.”          Good judgment comes from experience, and a lot of that comes from bad judgment.: WILL ROGERS.    Be not afraid and let not your heart be troubled.   Derek Gilna, Director, JD, (De Paul, 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."

BOP Director on the Way Out? Who Will Be Held Accountable for BOP COVID Disaster?

 

DELTA Spikes in Minnesota and Michigan, and Persists Elsewhere; Congress Recesses for Thanksgiving; DOJ Inspector General Blasts Prisons for not Implementing Time Credits Until January; Durbin Calls for Prison Director to be Fired; Appellate News

 

by Derek Gilna

 

            So for those judges who think that being vaccinated defeats the  "extraordinary and compelling circumstances" path to relief, think again. You already learned here that that CDC found that 70% of vaccinated federal prisoners in a Texas federal prison still caught COVID. "Of 185 fully vaccinated prisoners at the unnamed prison, 129, or about 70%, caught the virus," said the CDC. "This was a much lower rate than the unvaccinated prisoners, 39 of 42 of whom - or about 93% - caught COVID-19 during the outbreak," said the study, published Tuesday in the CDC's Morbidity and Mortality Weekly Report. Hagan LM, McCormick DW, Lee C, et al. "Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison — Texas, July–August 2021." MMWR Morb Mortal Wkly Rep 2021;70:1349–1354. DOI: http://dx.doi.org/10.15585/mmwr.mm7038e3external icon.             The same study notes that the five top risk factors for possible death are history of smoking, hypertension, obesity, being overweight, and diabetes.

            According to the Wall Street Journal, " there have been more than 1.89 million cases and at least 72,000 hospitalizations and 20,000 deaths among fully vaccinated people in the U.S. this year... State and federal data broadly show unvaccinated people are primarily driving pandemic numbers. Breakthrough infections, however, are making up a growing portion because of rising numbers of vaccinated people and waning immunity among people who got their shots early on, some states show." www.wsj.com, 11-22-21.

            The two hardest-hit areas for recent public outbreaks are Minnesota and Michigan. Federal medical teams have been dispatched to Minnesota to help at overwhelmed hospitals. Michigan is enduring its worst case surge yet, with daily caseloads doubling since the start of November. “This thing is no longer just throwing curveballs at us – it’s throwing 210-mph curveballs at us,” said Michael Osterholm, a public health researcher at the University of Minnesota. He said that the virus had repeatedly defied predictions and continues to do so. www.nytimes.com, 11-22-21.

            And it is no coincidence to see the official number of new staff infections at Rochester is 7, spread across all departments, meaning that there will be multiple new cases there, whether they make it to the website or not. Alderson camp also has a new outbreak, among fully vaccinated individuals.  Safford continues to have more active cases. From Seagoville, 25 additional cases, to go along with the pre-existing. There continues to be no federal prison treatment of any "Long Haulers," and it would be my educated guess that there is no category in those stone-age prison computers to even allow for data-entry on that condition.

            Of course, none of the studies address the unprofessional ways in which federal prisons administered the vaccine, the low percentage of guard vaccinations, and the amazing level of stupidity exhibited by prison officials in the face of immeasurable human suffering.

            Sixty-thousand inmates potentially did not properly receive credits for time served under the First Step Act's recidivism programs, the Department of Justice inspector general found. "We are concerned that the delay in applying earned time credits may negatively affect inmates who have earned a reduction in their sentence or an earlier placement in the community," Department of Justice Inspector General Michael Horowitz wrote in the report released Tuesday. www.oig.justice.gov. 11-16-21.

             Senator Durbin said it is time for new federal prison leadership.  "Director Carvajal was handpicked by former Attorney General Bill Barr and has overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic, failing to address chronic understaffing, failing to implement the landmark First Step Act and more," Durbin said. "It is past time for Attorney General Garland to replace Director Carvajal with a reform-minded director who is not a product of the BOP bureaucracy."

            We continue to get many inquiries regarding 924c and Hobbs Act robbery cases. See, US v. Simmons, 2021 U.S. App. LEXIS 26399 (4th Cir. 2021).  Of course, the Fourth Circuit has already held that "both generic and aggravated RICO conspiracies are not crimes of violence under 18 USC 924(c)(3)(A). In United States v. Michael Henry (6th Cir. 12-20),  the Sixth Circuit held that defendants convicted under 924(c) and involved in resentencing proceedings on remand must be sentenced subject to the First Step Act’s amendments to 924(c).

            In United States v. Jack Voris, (9th Cir. July 2020, the Ninth Circuit reversed one of the defendant’s assault convictions and corresponding § 924(c) convictions as multiplicitous because the defendant, although charged with shooting at five officers, only shot at them four times. The Court also held that multiple shots fired in quick succession do not necessarily mean the firearm was only used once under 924(c).

            In other circuit news, in US v McClain, Nos. 21-2089 & 21-2090 , (7th Cir.10-18-21 ) the Seventh Circuit reversed a trial court’s order under Rule 36 of the Federal Rules of Criminal Procedure, which had directed an inmate to return to prison after he had finished his sentence in a separate case. While the court had initially sentenced the defendant in two cases, and had ordered that he serve 18 months after finishing his first sentence, the court was inconsistent in its oral pronouncement and its written judgment. Errors by the court itself are not “clerical errors” under Rule 36, so Rule 36 was not applicable.

            Finally, in US v Scott, No. 20-1514 (3rd Cir. 9-21), the court joined 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. Eric Scott was sentenced under 18 U.S.C § 922(g)(1) for possessing a firearm as a convicted felon. The District Court applied the career offender sentencing enhancement under U.S.S.G § 2K2.1(a)(2), finding that Scott had two prior convictions for “crimes of violence,” one of which was a conviction for Hobbs Act robbery under 18 U.S.CC. § 1951(b)(1). Scott did not object to this enhancement, but on appeal he argued that it constituted reversible error.

 

Be not afraid and let not your heart be troubled.

 

Derek Gilna, Director, JD, (De Paul, 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."

 

Justice Reform Movement COntinues to Grow; Concern Grows for Federal Prisoners as Breakthrough Infections Rise, Winter Approaches

 

Congress Prods Biden to Act on Clemency; Senate Emboldened to Seize Reform Initiative from Embattled Executive Branch; Vaccine Potency Fading Over Time; Circuit Updates.

 

by Derek Gilna

 

            When the annual Federalist Society Convention in Washington, D.C.,  a conservative legal group that has enormous influence in federal judicial selections, has a distinguished panel  discussing the inequities of the federal criminal justice system, you know that the impetus for further reform has quickened. When former President Trump overcame sentence reform obstructionist, including Senators Jeff  Sessions and Tom Cotton with the passage of the First Step Act of 2018, it empowered reform-minded Senators such as Charles Grassley, Richard Durbin, and others to push for new reforms. Some of these same Senators are also pushing hard for wide-spread clemencies of older short-timers, and are also focusing on the thousands of federal marijuana prisoners, especially from those states that have purged many marijuana convictions.

            The ongoing debate over whether to send back to federal prison thousands of people transferred to home confinement during the COVID-19 pandemic is just one factor focusing attention on the issue of presidential clemency powers. Advocates are calling on the President to commute the sentences of people on home confinement to prevent them from being returned to prison. And so far, the president appears to be open to at least a limited form of clemency.

            Now that the infrastructure bill has passed, and the smaller "Build Back Better" bill is moving towards a vote, there is a lot of energy behind the scenes for action on some of the pending bills. At the top of the list so far is the EQUAL Act, which is stalled in the Senate after receiving a rare and overwhelming bipartisan 361-to-66 vote in the House of Representatives.  This bill would eliminate the 18-to-1 sentencing disparity between crack and powder cocaine, perhaps the worst vestige of injustice in America’s drug policy.

            Why is the federal prisons system so short of money, such that prisoner meals have been reduced, commissary shelves are often bare, and payment to prisoners for some program completions like RDAP are behind? Although there has been no public announcement, my suspicion is that its budget has been depleted by both COVID expenses, and extensive overtime pay outlays, aggravated by staff resignations and the necessity for augmentation. Hopefully, this situation will be rectified by the time the new FSA programming credits are due to begin in January of 2022.

            As the weather gets colder, states such as New York, Minnesota, and Michigan are beginning to see an uptick in new COVID cases. Minnesota's governor called out the national guard as the state's hospital beds fill up. Of course, COVID, and DELTA have never left the federal prison system, as new doubts arise as to the long-term effectiveness of the vaccines. So-called "Breakthrough" infections of the vaccinated have increased, and are higher in prison due to the often shoddy and unprofessional way in which the vaccines were stored prior to being administered. Even presuming that prisoners received an effective dose, most studies show  that the vaccines are only effective a few months, and have lesser effectiveness against new variants. (Even common flu vaccines must be administered every year to maintain even modest immunity, but people still get the flu regardless.) Does DOJ have another plan for when cases begin their inevitable increase this winter? Of course, since DOJ does not test prisoners on a regular basis, there is no way to know if the disease is spreading, and the agency is apparently just fine with that.

            From the New York Times: "The New York Times on Thursday cited multiple studies showing that vaccine effectiveness begins to wane within months. A study in England found that the Pfizer-BioNTech vaccine is about 90% effective at preventing symptomatic infection two weeks after the second dose but drops to 70% effective after five months, the Times reported. 'Breakthrough infection is common, but hospitalization without underlying risk factors is still very uncommon,' said Dr. Rajinder Bajwa, chief of infectious disease and infection prevention at Niagara Falls Memorial Medical Center. 'Most people we see in the hospital have multiple underlying medical conditions.'

When it comes to the vaccine failing to prevent hospitalization, it generally means the patient is old, sickly or both."

            “Some of the people won’t respond to the vaccine because of their diseases, and some of them won’t respond to treatment. Those are a lot of the people we’re losing now,” said Dr. Thomas Madejski, former president of the Medical Society of the State of New York, who practices in Medina and Albion. “When you look at the people who have been vaccinated and do get Covid and succumb, most of them have another comorbidity that suppresses their immune system or puts them at higher risk,” Madejski said.

At the beginning of New York’s public vaccination rollout in January, shots were in short supply, and the state limited them to senior citizens and those with pre-existing conditions or jobs in professions that involved a lot of public contact. Now, it seems, that protection is wearing off, and that could be a factor in the region’s rising positivity rates.

            However, if one contacts COVID or DELTA in prison, DOJ essentially refuses to treat you for any symptoms of the disease, or "Long Covid," whereas on the outside, multiple treatments, including monoclonal antibodies. "Doctors should move aggressively to treat patients with monoclonal antibodies in the early stages of Covid to prevent hospitalization. In the last couple of weeks, it’s as bad as it’s been. I’ve treated eight people with monoclonal antibodies in the past week to two weeks. I haven’t done it ever at that level,” Madejski said. The drug is readily available and is given as a onetime intravenous infusion." www.nyt.com, www.buffalonews.com, 11-12-21.

            From the CDC: "The current 7-day moving average of new deaths (1,110) has decreased 8.8% compared with the previous 7-day moving average (1,217). As of November 3, 2021, a total of 747,970 COVID-19 deaths have been reported in the United States.. New Hospital Admissions: The current 7-day daily average for October 27–November 2, 2021, was 5,075. This is a 6.7% decrease from the prior 7-day average (5,441) from October 20–October 26, 2021," www.cdc.gov, 11-15-21.

            The reverberations from the conditions of confinement scandal in the DC jail continues to reverberate in Congress. While “a formal summary” of the inspection, conducted last month, is still being prepared, Lamont J. Ruffin, the acting marshal for U.S. District Court in Washington, told the D.C. Department of Corrections in a letter Monday that the findings “may warrant further examination” by the Justice Department’s civil rights division. Any attention given to conditions of confinement by members of

Congress can only be a positive development. In the meantime, continue to document all of these problems at the institutional-+* level with your elected representatives. At some point "the dam will break," and Congress will feel compelled to take action.

            In the circuits, the 11th Circuit opinion in US v Cook, 998 F.3d 1180, (11th Cir. 2021), echoes other circuit holdings that state that the district court must demonstrate that it considered the 3553(a) factors when denying a motion for Compassionate release.  Cook had hypertension, obesity, and Latent Tuberculosis.  

 

            Be not afraid and let not your heart be troubled.

 

Derek Gilna, Director, JD, (De Paul, 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."

 

 

Passage of Infrastructure Bill Should Clear Way for Sentence Reform Bills

 

Passage of Infrastructure Bill Should Clear Way for Sentence Reform Bills; Supreme Court Grants Cert to White-Collar Physician Drug Cases, and Narrows Scope of Computer Crime Law; DELTA (and CARES) Will be With Us Well Into the New Year; Case Updates

 

by Derek Gilna

 

            The $1 billion federal infrastructure bill (which included a lot of additional funding for things other than infrastructure) was approved by the House, and will now move to the Senate, where passage is expected. The action, delayed for months, came shortly before a one-week Congressional recess. Congress will return for a week of work the following week, and then adjourn for Thanksgiving. I predict that the "Build Back Better" bill will be tabled , which will free time for consideration of the multiple bills awaiting committee and full Congressional action. There is serious momentum behind most of these bills, most of which have strong bipartisan support.

            This legislation takes on new significance, given that Biden has in fact increased by almost 5000 the number of federal prisoners, which as of Nov. 4, 2021 was156,428 "Total Federal Inmates."  Thus, over the last six months, the total federal prison population has grown nearly 3% with more than 4,300 additional inmates.

            Although DOJ and some judges and circuits want the COVID-19 pandemic to go away, COVID stubbornly holds on in the nation's jails and prisons. DOJ is clearly gambling that even without testing and follow-up treatment for both the newly-infected and "Long Covid" sufferers, the number of deaths will be insufficient to outrage a public that is distracted by its own challenges. However, according to www.cdc.gov, 11-4-21," 89,711 New Cases, 1,604 New Deaths, Total deaths, 751,530," in the past week.

            FMC Rochester has many individuals who are sick, feverish, and coughing incessantly, but no one knows if it is the flu or COVID, because no one has been tested.   Lexington has yet another confirmed COVID case.

            It's clear that DOJ is persisting with its policy of non-testing, or testing without placing the test swab far enough up the nasal passage to be effective,  to reduce its positives, and continues to undercount new cases on its website. m Ft. Dix: "On 11/03/2021,  they swab tested us here in 5811;  problem was, they only tested the unvaccinated.- they act as if the vaccinated are immune.  That is far from the truth; the vaccinated catch and pass on the virus.  Several vaccinated in here that are sick. "

            The CDC agrees with him. "Vaccine Breakthroughs and Variants:

Some people who are fully vaccinated will get COVID-19. The Delta variant is more contagious than previous variants of the virus that causes COVID-19. Overall, if there are more infections with SARS-CoV-2 (the virus that causes COVID-19) there will be more vaccine breakthrough infections." www.cdc.com 11-1-21.  So, as long as DOJ continues to follow its own path, and not the path of the CDC, COVID (and the CARES Act) will be with us well in 2022, and perhaps beyond. In preparing individual petitions for Compassionate Release, I use the most up-to-date data to advance your case, and have arguments for relief for both vaccinated and unvaccinated individuals

            An additional argument is that DOJ, especially given its short staff, and shortage of properly trained and competent medical staff, has done a poor job of properly refrigerating and  inoculating prisoners seeking vaccinations, and is more interested in "checking the box" than offering competent medical care. For not the first time, I heard about someone with severe heart and blood pressure issues whose morning medication was given to another prisoner with a similar name.

            Pfizer Inc. said Friday that its experimental antiviral pill for COVID-19 cut rates of hospitalization and death by nearly 90% in high-risk adults, as the drug maker joins the race to bring the first easy-to-use medication against the coronavirus to the U.S. market. Once Pfizer formally applies, the FDA could make a decision within weeks or months. If authorized the company would sell the drug under the brand name Paxlovid. We'll see if DOJ approves use of this pill in federal prisons to displace its  "wonder drug," Tylenol.

            From Washington, D.C., comes news that the US Marshals will no longer use the DC jail as a holding facility. After years of complaints, the agency finally responded, as clients represented by outside counsel complained to the federal court judges hearing the January 6 riot cases. In a letter from acting U.S. Marshal Lamont Ruffin to the director of the D.C. Department of Corrections, obtained by The Washington Post, Ruffin said investigators conducting a surprise inspection of the D.C. Jail on the week of October 18 found that it appeared water and food were withheld from inmates as punishment. (More on this next week.) So continue to document your conditions to your elected representative.

            In the U.S.  Supreme Court, an order this past week granted certiorari in a few new cases, including a (consolidated) pair of criminal matters involving whether and when doctors can be criminal liable for unlawfully dispensing prescription drugs.  The two cases are Ruan v. US, No. 20-1410, and Kahn v. US, No. 21-5261 previously reported on here.

            The Supreme Court also limited certain computer-based offenses, in Van Buren v. U.S. , No. 19–783, out of the 11th Circuit.. Former Georgia police sergeant Nathan Van Buren used his patrol-car computer to access a law enforcement database to retrieve information about a particular license plate number in exchange for money. Although Van Buren used his own, valid credentials to perform the search, his conduct violated a department policy against obtaining database information for non-law-enforcement purposes. Unbeknownst to Van Buren, his actions were part of a Federal Bureau of Investigation sting operation. Van Buren was charged with a felony violation of the Computer Fraud and Abuse Act of 1986 (CFAA), which subjects to criminal liability anyone who “intentionally accesses a computer without authorization or exceeds authorized access.” 18 U. S. C. §1030(a)(2). The Court, provided a strict interpretation to the words "intentionally accesses a computer without authorization or exceeds authorized access." 

In US v. Sheppard, 20-3088, (3rd Cir. November 3, 2021) Sheppard began serving a three-year term of supervised release in connection with a 2016 guilty plea for mail fraud. During the first year of his supervision, Sheppard learned that his girlfriend and his assigned probation officer were engaged in an alleged “personal relationship” that included texting and telephone conversations concerning the probation officer’s romantic relationship. Sheppard moved for early termination of his term of supervised release under 18 U.S.C. 3583(e)(1). The Third Circuit affirmed the summary denial of the motion. The district court was not required to cite the specific 18 U.S.C. 3553(a) sentencing factors; it sufficiently indicated that it considered the relevant factors. The court did not fail to consider the effect of the probation officer’s alleged misconduct but focused the majority of its decision on addressing Sheppard’s rehabilitation argument. It found that Sheppard “offer[ed] no persuasive explanation for why the purported misconduct of his former probation officer... makes him less amenable to, or needful of, such assistance.” 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.

 

           

 

BOP COVID Follies Still Costing Lives, and Institutionalizing Suffering; Compassionate Release Not Just for COVID

 

Insiders Say Some Reform Bills Could Be Voted on Before the End of the Year;

Supreme Court Considers Expansion of "Extraordinary and Compelling" factors for

Compassionate Release Cases; DOJ COVID Follies Still Costing Lives, and Institutionalizing

 Suffering; Compassionate Release Not Just for COVID; Appellate Updates

 

by Derek Gilna

 

            Recent progress on the Congressional "Infrastructure" and "Build Back Better" bills has brightened the outlook for passage of the "Equal Act" and the "First Step Implementation Act." The former, of course, finally eliminates the Crack quantity sentencing penalty, and the latter expands the reach of the First Step Act of 2018. Only four legislative weeks remain before the end of the year, although these and other reform bills could come up for a vote after the first of the year.

            The U.S. Supreme Court has added another case, Jarvis v US, out of the 6th Circuit, which asks the question, " 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)." Although some courts have already granted relief on this basis, such a positive result is by no means guaranteed, and a positive decision would results in many grants of relief.

            DOJ COVID statistics and its credibility-challenged website continue to fail the "sniff test." Even without  first-person reports, it is clear that the reported numbers do not compute, based upon only common sense on how a contagious virus spreads. Due to staff shortages in all institutions, guards often pull considerable overtime, and come in contact with a lot of residents. How likely is it that the largest federal prison in the Grand Canyon state has 27 staffers ill with COVID and 0 residents, exactly the same status as Oakdale? Likewise, Carswell, with 13 staff, and only two residents listed, and Aliceville with 5 staff and only one resident listed.   These results are is scientifically IMPOSSIBLE, given how contagious DELTA is. At Aliceville, one overworked and ill guard transmitted the virus to upwards of 25 residents, who obviously came in contact with many others. Same with multiple other facilities, like Coleman, and Terre Haute, where the guards picketed on Friday. Even if these low prisoner counts WERE accurate, why are over two-thirds of the federal prisons on "Red" status, with scores of their prisoners "quarantined" in the SHU?

            Even though the DOJ censorship lid is screwed on tightly, news reports on DELTA cases and deaths in prisons are making it into the newspapers. As one paper reported in Allenwood, Pennsylvania, " (DOJ) Prisons reported 23 new active COVID-19 cases at the low-security unit in Allenwood on Wednesday, pushing the active case count to 29 at the facility. In Wednesday’s update, (it)  registered 25 active inmate cases and four staff cases." https://www.dailyitem.com/coronavirus/23-new-covid-cases-at-federal-prison-in-allenwood.

            And in Texas, yet another death at Beaumont (at least the second this year), and one which points out the danger of being "recovered" while symptoms of "Long Covid" are ignored, not to mention the usual slipshod medical treatment and diagnosis of potentially life-threatening conditions. Robert Hatchell tested positive for the novel coronavirus and was immediately placed in medical isolation in late 2020: “In accordance with Centers for Disease Control and Prevention (CDC) guidelines, Mr. Hatchell was converted to a status of recovered, following the completion of medical isolation and presenting with no symptoms,” DOJ said. He later complained of severe abdominal pain, and died in the hospital he had "long-term, pre-existing medical conditions, which the CDC lists as risk factors for developing more severe COVID-19 disease."  https://www.beaumontenterprise.com/news/article/Second-senior-COVID-recovered-federal-inmate. There are also continuing problems at Tallahassee: "13 women in our unit tested positive... 32 in quarantine and isolation...one on a ventilator and other 2 sent to hospital." 

            There are high numbers of vaccinations listed on the DOJ website, "258,708 doses distributed, 239,008 administered." However, once again, the numbers do not add up.   That means that almost 75% of prisoners have been vaccinated, and if you add the numbers of recovered prisoners, which is estimated to be upwards of 25,000 (a conservative figure), why are people still getting sick?

            The short answer is: "unvaccinated guards." A federal COVID-19 vaccine mandate takes effect November 9th but many prison employees remain unvaccinated. According to the most recent BOP data, 360 employees and 1,917 inmates have been fully vaccinated at Terre Haute. When the world was just learning about the coronavirus a year and a half ago union leaders said there was a lack of personal protective equipment and tests to keep people working at the prison safe. Harold Smith is the AFGE Local 720 president., and represents 585 out of 705 Terre Haute Federal Correctional Complex employees. Smith said, "I think basically it comes down to distrust a lot of times. This is the most publicized vaccine in the history of modern medicine."

            The US has 330 million people, with 40 under the age of 12, who have not shown to be susceptible to dying from COVID or DELTA. 750, 000 have died from COVID.  There have been 419 million (professionally administered) vaccine  doses, and 45 million have recovered from either COVID or DELTA. www.cdc.com. Draw your own conclusions.  

            New data from the CDC appears to show that even vaccinated older people are at risk. "Age is our top risk factor for vaccine breakthrough deaths,” said Theresa Sokol, the state epidemiologist in Louisiana, one of the jurisdictions that contributed to the CDC data. Breakthrough deaths among seniors may be because of immunosenescence, or the weakening of the immune system in older people, said Heather Scobie, a public health researcher at the CDC who helps lead the team that produced the new data. “They don’t usually form as robust a response to vaccination,” added Scobie. “Hopefully the booster dose for ages 65 years and older will address that issue.” www.nyt.com. This is an EXCELLENT argument to refute DOJ statements that ppeople who are vaccinated are not at risk of death from DELTA.

            The well-funded, nationwide ACLU has done much of the heavy lifting regarding class actions and document requests from DOJ on its ineffectual COVID response. So far, DOJ has only released just a few of discovery documents, which will be made public, hopefully in the near future.

            In a seeming unrelated, but actually quite relevant trial starts today in Arizona, after a federal judge threw an ACLU and state of Arizona prison health care settlement after the state failed to comply with its terms for over 10 years. The facts in this case closely parallel federal prison health care issues, so I will be watching this closely to see if it can be used in federal lawsuits. Parson v. Ryan, 2:12-cv-00601-ROS, USDC, D of Arizona.

            Compassionate Release is NOT just for COVID. Some of you may recall the case of  Michelle McGee, the former Pekin, and finally, Carswell resident, who fought a long battle with non-smokers lung cancer.    (This disease is especially deadly in females 30 to 60, the disease can strike anyone with lungs, regardless of whether you have smoked or not. ) Michelle showed symptoms of the disease for well over two years, and we filed for CR for her when even online, I was able to recognize symptoms of lung cancer, file a CR, and get her released. The pandemic made a poor health system even less responsive, so you must truly be alert to chronic conditions. It is an open secret that DOJ medical staff has a nationwide policy of understating health problems, so scrutinize your records carefully, as the US Attorney will cite the lack of medical proof to argue for denial of your CR petition. Those with hypertension who have stroke risk should also consider filing a CR.

            In the circuits, the USDC for the So. D. of WV published an opinion in December of 2020, which states that the "offense of conviction" does NOT include relevant conduct encompassing an overdose death, for purposes of calculating a base offense level. US v. Kimble, 2020 U.S. Dist. LEXIS 237529 (Dec. 17, 2020.)     The 11th Circuit has held that a district court order denying CR must still demonstrate that it had considered the applicable factors under 19 U.S.C. Section 3553(a). US v. Cook, 998 F.3d 1180 (11th Cir. 2021). In the 4th Circuit, the court has held that a RICO Conspiracy is not a "Crime of Violence" for purposes of Section 924(c): "both generic and aggravated RICO conspiracies are not crimes of violence under 18 USC Section 924(c)(3)(A). US v. Simmons, 2021 U.S. App. LEXIS 26399 (2021).

            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."