BOP Forced to Close USP Atlanta and MCC New York Due to Uncontrolled Corruption and Safety Issues

 

Two Federal Prisons Closing: "Corruption and Mismanagement" at all Levels Put Prisoners and Staff at Risk; Can Prison System Reach Mandatory Rehabilitation Goals of First Step Act? A New Path to Resentencings; What's Going on With Pardons? Appellate Updates.

 

by Derek Gilna

 

            The recent closing of USP Atlanta and the announced closing of MCC New York have been portrayed by DOJ as a need to consolidate facilities  and close aged and deteriorating structures, but the real reasons they are closing is rampant corruption, mismanagement,  and illegality in a system that has never been  closer to collapse. If the federal prison system was a business, it would have been put out of its misery years ago in bankruptcy court or in  liquidation proceedings. Plaintiff's lawyers ( full disclosure: I was one) smelling money would have seen  to it.      

            The COVID-19  crisis not only revealed the limitations of even relatively well-run companies and governmental bodies, but also that the current operations procedures of the collapsing federal prison system are not sustainable. As a  result of this mismanagement, the  programming required by First Step to achieve sentence credits is not being offered, and DOJ has been accused of purposely misinterpreting Congressional intent in calculating those credits.

            An incredible story from the Atlanta Constitution outlined breath-taking corruption at USP Atlanta, which one observer said implicated 20-30 percent  of the staff, and included not only seemingly unlimited contraband coming into the prison but also prisoners coming and going "outside the fence," seemingly at will. The prison, which held 1800 prisoners, now houses only 134 work cadre,  whose sole job is facility maintenance,  the newspaper said.  The 130 years old building  is close to collapse.

            The MCC NY, famous for the death of Jeffrey Epstein, will also be closed “at least temporarily,” the Justice Department said Thursday. The Metropolitan Correctional Center in lower Manhattan could be shut down as soon as the coming month, sources say.

“In an effort to address the issues at MCC NY as quickly and efficiently as possible, the Department has decided to close the MCC, at least temporarily, until those issues have been resolved. Planning for the deactivation is under way, and we will have more updates as that process continues,” a DOJ spokeswoman said in a statement.

            These actions are only just the tip of the iceberg. Prison buildings at almost all facilities are in disrepair, with leaking roofs, deteriorating mechanical systems, riddled with mold, and poorly maintained in the best of times. COVID has shown that such facilities can also be hazardous (or deadly)  to your health.

            Contrary to the DOJ COVID website, DELTA numbers are continuing to climb,  and no real plan has been put forward to do anything other than to let it burn itself out, regardless of the human cost. There is little to no testing. Whole dorms  of sick prisoners in certain prisons, like Yazoo, have been isolated from the rest of the compound. A prisoner at Alderson FPC says "1/2 of the inmates are coughing and sneezing and very sick and no one is being tested." Another prisoner at Elkton, which was COVID ground-zero in 2020, says that even with that deadly history, there is no masking by guards, half of whom are unvaccinated, and no social-distancing. People with COVID symptoms in MCC Philadelphia and at Waseca are placed in the SHU for "quarantine," subject to all of the punishing restrictions that go along with those facilities, including lack of personal hygiene and cleaning materials, and little ability to advise family of their health status. FMC Rochester has multiple staff and prisoner confirmed cases of DELTA. Coleman has seen another death, cause unknown, since the prisoner's calls for medical help went unheeded. Ashland: 7 inmates, 9 staff.

            From the highly-respected Cleveland Clinic, comes a review of COVID symptoms: " Fever or chills, Cough, Shortness of breath or difficulty breathing,

Muscle or body aches, New loss of taste or smell, Sore throat, Congestion or runny nose,

Nausea or vomiting, Diarrhea." Dr. Choi of that hospital also noted instances of  "Covid Toes," and rashes can also occur: “It’s not uncommon for someone to have a viral infection and have a rash or blotchy areas on their body. This can happen with other viral respiratory infections like measles. And sometimes, antibiotics might cause skin rashes,” says Dr. Choi. “It’s a different form of manifestation and it is still not very clear what causes it. One pattern of COVID toes that people are reporting is red lesions typically on the soles. It’s possible that this is a skin reaction or caused by a small clog or micro clots in the blood vessels found in the toes,” Dr. Choi says. www.health.clevelandclinic.org.

            One of the principal drivers of long sentences, even for first time offenders, in a drug trafficking crime or a crime of violence, is the enhanced sentences to be served back-to-back, under 18 U.S.C. sec. 924(c). See:  Section 924(c)(1)(C). Section 403 of the First Step Act clarified that these enhanced sentences should only apply to defendants who had prior final conviction under 924(c, but it only applies to an  offense that was committed before December 21, 2018.

            Notwithstanding the non-retroactivity of section 403,district courts are now using another provision of the First Step Act, section 603, codified at 18 U.S.C. SS 3582(c)(1)(A), to undo the harsh sentences resulting from section 924(c) stacking. Section 603 of the First Step Act amended section 3582(c)(1)(A)(i) to permit the defense to initiate a request for compassionate release based on, among other things, "extraordinary and compelling reasons." Some recent examples of district courts granting motions for compassionate release pursuant to section 3582(c)(1)(A) to .alleviate the harsh consequences of section 924(c) stacking: United States v. Defendant (Yvette Wade), No. 2:99-cr-257, 2020 WL 1864906, *8 (C.D. Cal. Apr. 13, 2020), Dkt. 637 ; United States v. McPherson, No. 3:94-cr-05708-RJB, 2020 WL 1862596, *5  (W.D. Wa. Apr. 14, 2020), Dkt. 209.

            A conference at Ohio State, including many prisoner relief and advocacy groups working hard to break the clemency logjam, will put increased pressure on the Biden administration to deliver on the many pre and post campaign promises to reform the system. At this conference, the participants will lay out a step by step plan for the administration to actually begin the admittedly daunting task of changing the system.

In US v Anderson, 20-1729, (8th Cir.  August 26, 2021, the court affirmed the district court's order reducing defendant's sentence under section 404(b) of the First Step Act. The court concluded that the district court committed no procedural error in declining to further reduce defendant's sentence where nothing in the record indicates the district court believed it was bound to keep the sentence within the current Guidelines range, and the district court did not deny its authority to reevaluate defendant's criminal history category. Finally, the district court did not abuse its discretion by failing to consider relevant and significant factors supporting a discretionary sentencing reduction. Rather, the record demonstrates that the district court considered defendant's arguments and set forth a reasoned basis for exercising its sentencing discretion.                    In US v. Hoxworth, 19-1562, (8th Cir. August 26, 2021), the court affirmed defendant's conviction for being a felon in possession of a firearm after he brandished a stolen rifle in a stranger's backyard. The court concluded that, even if justification can serve as a defense to a felon-in-possession charge, the facts in this case do not support a justification for possessing the rifle at issue. The court reversed defendant's sentence and remanded for resentencing where the government concedes that defendant's Texas conviction for aggravated-assault did not qualify as a violent felony for purposes of the Armed Career Criminal Act.         In US v Clark, 20-1887,  (6th Cir. August 26, 2021), Defendant  robbed three banks, stating that he had a gun. Clark was indicted under 18 U.S.C. 2113(a) for two of the robberies and pleaded guilty, and admitted to another robbery. Based on the terms of the plea agreement, the PSR included the Ohio robbery as a “Pseudo Count” for calculation of Clark’s sentencing range. For each of the three bank robberies, the PSR assessed enhancements for a victim sustaining life-threatening bodily injuries during the car chase and for Clark recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. Clark argued the enhancements should only apply to the Pseudo Count to avoid unlawful “triple counting,” and because there was an insufficient nexus linking the flight in Kentucky to the two Michigan robberies. The court overruled these objections and sentenced Clark to a total of 235 months' imprisonment. The Sixth Circuit vacated. There is no explicit indication that the Sentencing Commission “intended to attach multiple penalties to the same conduct” merely because counts are not grouped together; the stated intent of the grouping guidelines demonstrates that it would be improper to increase a defendant’s sentence based on the same conduct enhancing multiple counts. The court remanded for resentencing without application of the enhancements to all three bank robbery counts.        In US v Braddy, 21-50185,  (5th Cir. August 26, 2021), After defendant pleaded guilty to conspiring to distribute cocaine and methamphetamine, the district court sentenced him to 10 years imprisonment and a 5-year term of supervised release. The written judgment listed ten statutorily mandated conditions of supervised release, as well as seventeen conditions from a district-wide standing order that the district court did not mention at sentencing.         The parties agree that the district court's judgment conflicts with the Fifth Circuit's decision in United States v. Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en banc). Diggles held that supervised-release conditions imposed by statute need not be pronounced orally at sentencing because any objection to them would be futile, but that discretionary conditions must be orally pronounced in the defendant’s presence at sentencing so that he has an opportunity to object. The court agreed with the parties that defendant did not have an opportunity to object to the seventeen conditions mentioned in the district court's standing order but unmentioned at sentencing. The court concluded that limited remand would be appropriate, granted the government's motion to do so, and denied as moot the government's alternative unopposed motion for extension to file its brief upon the denial of remand.        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."

Delta Variant Spreads in Federal Prisons; Will This Time Be Any Different From the Last?

 

Rapid Spread of Delta Variant  Prompts DOJ Lockdown Memo; No Movement on New Sentence Relief Bills; Appellate Updates

 

by Derek Gilna

 

            The newest DOJ memos outlining the newest "solutions" to the rapid spread of the Delta Variant in federal prisons tells you all you need to know about why many prison employees are quitting or retiring in record numbers. Of course, these same employees ignored decades of agency inefficiency and double-talk when it only harmed or degraded prisoners, but when employees fell sick and died because of incredible mismanagement, that is another. So in place of 2020 DOJ "Action Plans" that failed to contain Covid in 2020 , we instead have "a color-coded tiered approach that will permit operation to continue in a safe, secure manner."

            Make no mistake; the danger with the Delta variant is not only its ability to spread quickly, especially among the unvaccinated, but also that the vaccinated public  is weary of the never-ending COVID crisis, and is instead focusing on the wall-to-wall coverage federal governmental bureaucracy's newest fiasco of incompetence on full display in Afghanistan. Legislative progress on the new sentence-relief bills has ground to a halt.

            "Americans have entered a new, disheartening phase of the pandemic: when they realize that Covid-19 is not disappearing anytime soon. A country that had been waiting for the virus to be over has been forced to recalibrate. 'We can’t expect it to go away where we never have to think about it anymore,' said Emily Martin, a public health researcher at the University of Michigan.  'We’ve seen that it ebbs and flows. Sometimes we need to be more vigilant than others.' Scientists had warned for months that the coronavirus was likely to become endemic and that herd immunity was increasingly unlikely. But even though the vaccines remain effective, the virus has mutated and spread at a pace that has surprised some experts." www.buffalonews.com, www.nytimes.com, 8-17-21.

            Data from federal prisons shows that the short-handed and over-stressed DOJ central office is again gambling with the lives and health of its detainees by attempting to fight disease with a public-relations campaign, while again undercounting institutional infections.  Aliceville has dozens of identified cases, and many others who are suffering because they do not want to be isolated  where they will not be properly cared for in any event. One says, " they have never given tests here." The source: an officer who brought it in from an area where ER's and ICUs are already filled with unvaccinated COVID cases.

            Carswell is in a similar predicament. Once again, a "medical center," filled with the most-vulnerable, is loaded with new cases, perhaps as many as 50, and 5 staff, with reportedly two new deaths, and still more buses arriving. Prisoners complain that they have inadequate cleaning supplies and unmasked guards circulating from unit to unit, a situation common in all prisons. Other cases:  Terminal Island, California, more than 30. Tallahassee: 10 to 20, Coleman: over 50. Sandstone is in modified lockdown with positives. FMC Ft Worth is in lockdown with positive cases and two deaths. Waseca has a minimum of four. Yazoo is locked down tight, with an indeterminate number of new cases. Alderson has dozens of ill prisoners, but none have been tested. Sheridan had one new death.  It is a safe bet that DELTA is now in all DOJ institutions.       

            Although DOJ constantly touts its prison vaccination plan, there is grave doubt about the potency of vaccines administered by a medical staff that seems to be hard-wired to minimized the seriousness of prisoner health problems in all medical records (especially those submitted to federal courts) , and trained to slow-walk necessary outside life-saving and life-prolonging specialty care. And even those few shot that were given to prisoners  will loss effectiveness in the Fall, and have to be readministered.

            "U.S. health officials recommended all Americans get COVID-19 booster shots to shore up their protection amid the surging delta variant and evidence that the vaccines' effectiveness is falling. The plan, as outlined by the director of the Centers for Disease Control and Prevention and other top authorities, calls for an extra dose eight months after people get their second shot of the Pfizer or Moderna vaccine. The doses could begin the week of Sept. 20. In a statement, health officials said it is 'very clear' that the vaccines' protection against infection wanes over time, and now, with the highly contagious delta variant spreading rapidly, 'we are starting to see evidence of reduced protection against mild and moderate disease.'...'Based on our latest assessment, the current protection against severe disease, hospitalization and death could diminish in the months ahead,' they said." www.buffalonews.com, www.nytimes.com.

            The only good news, never discussed in the mainstream media, is that CARES will likely be with us for the foreseeable future, and DOJ officials continue to release people, ESPECIALLY those have filed compassionate releases. Those on home confinement should also file CRs without delay.

            In US v Robinson, 20-1947, (8th Cir. 8-18-21), the Eighth Circuit reversed the district court's denial of defendant's motion for a sentence reduction under the First Step Act of 2018, concluding that the district court erred in determining that defendant remains subject to a mandatory life sentence. The court explained that defendant's offense of conviction—not the underlying drug quantity—determines his applicable statutory sentencing range. In this case, the district court erred in determining that defendant remained subject to a mandatory life sentence based on defendant's conduct rather than the offense of conviction, and the district court erroneously concluded that relief was categorically unavailable because of the drug quantity. The court remanded for the district court to determine whether to exercise its discretion in imposing a reduced sentence.

            In US v. Prigan, 18-30238,  D.C. No. 2:18-cr-00123-SMJ-1, ( 9th Cir. 8-16-21), the  panel vacated a sentence for illegally possessing firearms, and remanded for resentencing, in a case in which the district court determined that the defendant’s prior conviction for Hobbs Act robbery under 18 U.S.C. § 1951(b)(1) is a “crime of violence” under United States Sentencing Guidelines § 4B1.2(a). The panel held that Hobbs Act robbery is not a crime of violence under § 4B1.2(a). "See United States v. Green, 996 F.3d 176, 184 (4th Cir. 2021); Bridges v. United States, 991 F.3d 793, 800 (7th Cir. 2021); United States v. Eason, 953 F.3d 1184, 1194 (11th Cir. 2020); United States v. Rodriguez, 770 F. App’x 18, 21–22 (3d Cir. 2019); United States v. Camp, 903 F.3d 594, 604 (6th Cir. 2018); United States v. O’Connor, 874 F.3d 1147, 1158 (10th Cir. 2017)."      Hobbs Act robbery, which covers using force or threatening to use force against persons or property, sweeps more broadly than § 4B1.2(a)’s force clause, § 4B1.2(a)’s enumerated offense of robbery, and § 4B1.2(a)’s enumerated offense of extortion—none of whose crime-of-violence definitions covers using force or threatening force against property. The panel held that the error is not harmless, because the district court provided no explanation for varying from the correct Guidelines range, let alone the extent of such variance. 

            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 Continues to Suppress News on Delta 19 in Federal Prisons; Evidence Shows Systemic Under-counting of Infection and Fatalities

 

"Nothing to See Here:" DOJ Is Silent on Spread of Delta as Federal Governmental Agency Failures Multiply;  IRS Concedes that Millions of Returns Still Unprocessed; New Case Provides Support for 2255 Filings

 

by Derek Gilna

 

            As Delta variant infections quickly spread through the federal prison system, DOJ continues to downplay the threat, and maintains its policy of undercounting infections and deaths. This policy of deliberate indifference has not had the desired effect, as more and more prisoner advocates and groups like the ACLU, and even some labor  leaders for federal correctional officers, call for an end to the policy of offical "impunity." https://uclacovidbehindbars.org/delta-data-transparency.

            Josh Manson, a researcher at the UCLA Law COVID Behind Bars Data Project, says that there have been few efforts to curb the Delta variant and COVID-19 overall, making prisons deadly places for transmission. “When the pandemic first hit in March 2020, prisons were not taking the situation seriously,” Manson says. “We know that it’s even more transmissible than it was the first time a year and a half ago. We’ve seen thousands of people die in jails and prisons.” www.verywell.com.

            Manson noted the number of "deathbed" releases, the release of incarcerated individuals who are near death, have skewed the death county lower.    “It’s basically just taking the handcuffs off while they’re [incarcerated people] on a ventilator and then saying, 'oh, you’re free,' and then they die,” Manson explains. Deathbed releases have made it difficult to determine the number of deaths that occurred within prisons, Manson adds. In fact, the New York Times reported  week that dozens of these cases around the country have been excluded from official counts. www.nytimes.com, July 7 2021.  In other words, prosecutors, given false numbers by their "client," are filing misleading information regarding the deadliness of the pandemic.

            Another way prosecutors misleads the judges is the "he/she refused the vaccine" argument.    However, as noted by noted COVID and correctional health expert Dr. Homer Venters, this completely misrepresents the reality of getting a vaccination in prison. Venters is an epidemiologist, clinical associate professor at New York University’s College of Global Public Health, and former chief medical officer for the New York City jail system. According to Venters, the most basic strategies for curbing vaccine hesitancy—like addressing people's concerns about safety—are not being employed.

            Incarcerated people have declined vaccinations because their questions about the vaccines were left unanswered, Venters says. “Often behind bars, the way that the vaccine is offered is through these big mass events, there’s very little attention to finding the people who have questions, and really sitting down and talking to them,” Venters adds. We have this paradoxical situation where some of the sickest people who really just had a lot of normal, genuine questions about vaccinations remain unvaccinated because of the way in which the vaccine has been offered,” Venters stresses. 

            Why are guard vaccination rates so low?   Venters has the answer. “For correctional officers, some have rejected the vaccine because they were worried about not having enough paid time off, Venters notes. “Correctional settings decided they were going to give people five or 10 days of COVID off, and that would include if they got sick from COVID, or if they had a side effect of the vaccine,” he adds. “But many correctional officers blew through that time a year ago when they got sick.”  Officers also saw the often serious side effects of giving vaccines to people already ill with COVID, or who were not properly screened before being compelled to take the shot. So DOJ is essentially also mistreating its employees, which is why they are quitting in droves. www.verywellhealth.com.

            The senior author of the JAMA Internal Medicine study, Massachusetts General Hospital  (MGH) infectious diseases physician Amir Mohareb, MD, has worked on a pro bono basis with several advocacy groups working to ensure that infection control measures are implemented in prisons during the coronavirus pandemic. So we asked, What are characteristics of these facilities that might lead to more COVID-19 transmission?" says Mohareb, who is also a researcher at MGH's Medical Practice Evaluation Center.                                                                                                              Their analysis found that crowding at the facilities varied greatly during the observation period, with the population at some dropping as low as 25 percent of design capacity, while others were extremely crowded, reaching up to 155 percent of design capacity. Mohareb and his colleagues found that as facilities became more crowded, the threat to inmates rose: Every increase of 10 percentage points in a prison population relative to the facility's design capacity raised the risk of getting infected with COVID-19 by 14 percent. Similar to other studies, this investigation found that inmates in prisons have a significantly greater risk—more than six-fold—for becoming infected with COVID-19 compared to the general public.  www.massgneneral.org.                                    Here are just a few of the current institutional counts:   FMC Devans: Over 10; FMC Carswell: Over 40; Waseca: over 5; FCI Houston: multiple officers and prisoners; Yazoo city: over 40, with multiple wings locked down; FCI Gilmer:  over 10, with partial lockdown in effect; both Elkton and the Lexington camp are experiencing outbreaks. Milan has multiple cases and lockdowns. As usual no general testing is being done.                                                                                                           As to the continuing failure of the IRS to process tax refunds, the IRS says your refund could take extra time if you filed for the earned income tax credit; requested a missing stimulus check; or were unemployed last year. It can also be delayed if you were a victim of unemployment ID theft.

            The Supreme Court continues in recess. In the circuits ,in the case of US v Warren, 20-3045, (6th Cir. 8-9-21), Warren pled guilty as a felon in possession of a firearm. His plea agreement bound the parties to “recommend that the Court impose a sentence within” Warren’s Guidelines range, calculated at 51-63 months, and prohibited either party from “suggest[ing] in any way that a departure or variance” from Warren’s Guidelines range “is appropriate.” (This is one defense attorney who earned his money.)

            Before sentencing, the district court notified Warren that it was considering an upward variance and ultimately sentenced him to 120 months in prison. The Sixth Circuit vacated, reasoning that “because the Guidelines already account for a defendant’s criminal history,” the “extreme variance” based solely on Warren’s criminal history was “inconsistent with the need to avoid unwarranted sentence disparities.” On remand, the district court again circulated a notice of possible upward variance. At the hearing, the court asked the parties to discuss the potential variance. The prosecuting attorney stated that she “wanted to clarify something that defense counsel brought up because she is asking the Court to have a standard of reliance upon this.” The prosecutor acknowledged the existence of a plea agreement, which “the government has no intention of violating” but indicated that, had the full extent of Warren’s history been known, there would have been a different recommendation. The Sixth Circuit vacated the 96-month sentence imposed on remand as substantively unreasonable. The government breached Warren's plea agreement. This reasoning is fully applicable in other circuits for 2255 habeas purposes.

 

Be not afraid and let not your heart be troubled.

 

 

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

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

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

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

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

 

 

           

 

BOP Fiddles While COVID Burns: New Spike in National Cases Will Quickly Spread to Federal Prisons As it Did Before

 

100,000 New Covid Cases a Day Give New Impetus to Compassionate Release/CARES Releases; Infrastructure Bill Debate Dominates House and Senate Legislative Time As Summer Recess Approaches

 

by Derek Gilna

           

          While the Biden administration struggles with multiple legislative challenges, a recognized disaster at the Southern border, and other policy setbacks, and Congress approaches their Summer recess, COVID continues to dominate the national news. The U.S. is now averaging 100,000 new COVID-19 infections a day, returning to a milestone last seen during the winter surge, after averaging about 11,000 cases a day in late June. Now the number is 107,143, all of this despite a vaccine that has been given to more than 70% of the adult population. Deaths have risen  from 270 deaths per day to nearly 500 a day. https://coronavirus.jhu.edu. "Our models show that if we don't (vaccinate people), we could be up to several hundred thousand cases a day, similar to our surge in early January," Centers for Disease Control and Prevention director Rochelle Walensky said on CNN this week.www.cnn.com.                                                                                                

            The South, home to an inordinate number of federal prisons, as well as DOJ "medical centers," (don't get me started) has seen most of the increase, and many hospitals are unable to accept additional patients. Houston officials say the latest wave of COVID-19 cases is pushing the local health care system to nearly "a breaking point," resulting in some patients having to be transferred out of the city to get medical care, including one who had to be taken to North Dakota. Dr. David Persse, who is health authority for the Houston Health Department and EMS medical director, said some ambulances were waiting hours to offload patients at Houston area hospitals because no beds were available.                                                                                                                                   

         "The health care system right now is nearly at a breaking point ... For the next three weeks or so, I see no relief on what's happening in emergency departments," Persse said Thursday. https://www.tmc.edu/coronavirus-updates. The situation is similar in other Texas cities, with Austin declaring a state of emergency over the weekend. www.foxnews.com.                                                                                                  

         Alabama has also been hard hit. The state reported double-digit deaths in four consecutive days leading up to Aug. 7. The 7-day average for new reported deaths in the state was 12.6 per day as of Saturday, the highest it’s been since late May. The new bump in deaths comes as the state is in the middle of its steepest coronavirus surge yet, with cases and hospitalizations still climbing. www.al.com.                                                                                                                      

            In Missouri, 30 ambulances and more than 60 medical personnel will be stationed across the state to help transport COVID-19 patients to other regions if nearby hospitals are too full to admit them, Missouri Gov. Mike Parson announced Friday.

            Western Illinois, home to the Pekin prison complex, is also experiencing a steep rise in cases. The tri-county COVID-19 update reported 138 new and probable cases in the area. Peoria County reported 58 new cases, bringing the county’s total to 23,926 with 376 deaths. In Tazewell County, there were 69 new cases for a total of 17,561 with 298 deaths. 

            The number of guards reporting for work has declined both in the Pekin area with at least 20 cases in the women's facility,  and nationwide, as lockdowns roll throughout the federal prison system and a guard staff still only 50% vaccinated. Once again, there are numerous complaints of curious and confusing quarantine protocols, that are unevenly administered and enforced.

            Oakdale, Louisiana is another area expecting the worse, with reported cases among prisoners and staff still in double digits, but as usual only symptomatic prisoners are being tested, and prisoners have been advised to expect lockdowns of up to 21 days. Of course, DOJ websites continue to report only select numbers that do not conform to what is actually reported from the institution.

            In the circuits, in Carter v. US,  16-16829, 17-15495, August 3, 2021, Defendant pleaded guilty to possessing a firearm after having previously been convicted of a felony and was sentenced under the Armed Career Criminal Act (ACCA) based on his previous drug-related convictions. The Eleventh Circuit explained that the Supreme Court recently clarified in Borden v. United States, 141 S. Ct. 1817, 1825 (2021), that the ACCA's elements clause does not include offenses that criminalize reckless conduct; it covers only offenses that require a mens rea of knowledge or intent.

             In this case, defendant was convicted of a version of Georgia aggravated assault that can be accomplished with a mens rea of recklessness - aggravated assault with a deadly weapon under O.C.G.A. 16-5-21(a)(2) based on a simple assault under O.C.G.A. 16-5-20(a)(2). Therefore, defendant's aggravated assault conviction cannot support his classification as an armed career criminal. The court vacated the district court's sentence and remanded for resentencing.

            In US v. Jordan, 19-3620, August 4. 2021, the Second Circuit vacated the district court's order denying defendant's motion for a reduced sentence pursuant to Section 404 of the First Step Act of 2018. The court held that defendant's multi-object conspiracy conviction, with a crack cocaine object that included a drug-quantity element triggering the statutory penalties set forth in 21 U.S.C. 841(b)(1)(A), qualifies as a "covered offense" eligible for a sentence reduction pursuant to the First Step Act. "Therefore, defendant's 254-month sentence on his multi-object conspiracy conviction is eligible for a sentence reduction under Section 404(b)". The court remanded for further proceedings.

            In US v. Saladino, 20-1563, August 4, 2021, the Second Circuit vacated the district court's denial of defendant's motion for compassionate release, holding that 18 U.S.C. 3582(c)(1)(A)'s exhaustion requirement is not jurisdictional. The court clarified that the administrative exhaustion requirement is not a jurisdictional limitation on a court's power to consider an inmate's motion for compassionate release. Rather, section 3582(c)(1)(A)'s exhaustion requirement is a claim-processing rule that may be waived or forfeited by the government. In this case, the government withdrew any defense based on defendant's prior failure to exhaust his administrative remedies. The court remanded for the district court to consider his motion on the merits.

            We also revisit the case of Bridges v. US, 991 F.3d 793 (7th Cir. 2021, )where the 7th CIrcuit held that Hobbs Act Robbery (HAR)  is NOT a  crime of violence for career offender enhancement, and also indicated that it was likely inadequate representation of counsel for the defense attorney not to have anticipated that development. The court noted that HAR is not a qualifying robbery because of the inclusion of property in the offense. The cases also cited the new Career Offender Guideline and the 19th Circuit Case of US v. O'Connor, 874 F.3d 1147, which also said HAR did not qualify under the new career Guidelines.  

            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)

dagilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish)

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

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

 

 

 

BOP DELTA Variant Risks to Prisoners Increases as Prisons Begin to see More Cases.

 

Biden's Lack of Urgency on Justice Reform Puts New Emphasis on "First Step" Petitions to Get Relief; Will Senate Take the Lead on Reform? CDC Issues DELTA Variant Warnings with 67, 000 new cases Last Week; Lack of Guard Vaccinations Put Prisoners at Risk; Important Case Filings in Fourth Circuit

 

by Derek Gilna

 

            It has been a bad week for the Biden administration, as sentence reform advocates

hammer the White House for lack of urgency on promised justice reforms. The  explanation for the delay in granting clemencies and pushing the bills pending in Congress is simple: spiking big-city crime, up 30% in Chicago, New York, San Francisco, Washington, D.C., and other big cities, and dipping poll numbers, making the administration fearful of being labeled "soft on crime." Reformers in the White House ask for patience, but for the moment, the path to relief lies in the courts.

            However, today Senators Grassley and Durbin announced that THEY will take the lead at pushing those many criminal reform measures through Congress if the White House does not take prompt action.

            There is no question that there is a direct correlation between a court filing for compassionate release (where valid grounds for relief exists, even if unsuccessful) and a CARES release.  I do not believe in coincidences, but I suspect that the federal prison system knows that its computerized medical records purposely understates the poor health of many prisoners, and that it actively scans compassionate release court filings for information on individuals that are truly at risk.

            Meanwhile, the DELTA variant continues to make its mark, especially among the unvaccinated, and is once again beginning its march through jails and prisons. Tallhassee, Aliceville, Carswell, Ashland, Milan, and several others have multiple cases, and prison officials are again reluctant to test. Lack of guard vaccinations continues to drive most of the increases.

            The prison in Oakdale, Louisiana, grabbed national headlines in March 2020 after a COVID-19 outbreak killed at least eight inmates and sickened more than 100 people. Sixteen months later, about 70% of its inmates have been vaccinated against the coronavirus - a rate more than double the 34% of prison staffers there who have taken the shot, according to Oakdale's union leader Ronald Morris, president of the American Federation of Government Employees Local 1007, a clear recipe for future disaster.

            A paper by Gregory Hooks of the Sociology Department of McMaster University, argues that lack of guard vaccinations and high COVID counts in prisons have directly contributed to COVID spread in communities surrounding jails and prisons.

"Mass Incarceration, COVID-19, and Community Spread," 11-1-20.

            As noted in the Wall Street Journal, "the Delta variant is perhaps two to three times more transmissible than the original virus that first emerged from China in 2019.   In the absence of any mitigating public-health measure, every 10 people infected with the original virus would go on to infect 25 people, on average.   With Delta, 10 infections would likely result in between 60 to 70 new infections."   www.wsj.com. 7-24-21.

            It appears that, "10% to 30% of all Covid-19 patients suffer from symptoms weeks and months after first getting the illness, including many young, previously healthy people, whose initial Covid-19 cases were mild.   Symptoms can include brain fog, fatigue, shortness of breath, racing heart beat, and an inability to tolerate physical or mental exertion....Most  people...have dormant, normal harmless viruses...that they contracted earlier,...Such viruses can be reactivated at times by stress, including infections." "Are Latent Viruses behind Long Covid-19 Symptoms?" www.wsj.com, 7-14-21.

            Under these circumstances, those both inside prison, those on the CARES waiting list, and those already on home confinement, would be well-advised to file  sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).  This would resolve the potential legal limbo in which CARES releasees  now find themselves, which could be perfectly described as constituting "extraordinary and compelling reasons" for a sentence reduction, especially if prosecutors cannot show how the 3553(a) factors would be better served by a return to prison. 

            Yet another study, a report by the governmental "Pandemic Response Accountability Committee: Key Insights: Covid-19 in Correction and Detention Facilities,"   May 12, 2021, is also critical of the government response to the pandemic. It noted that "The Centers for Disease Control and Prevention guidance recommends that facilities have three separate physical areas to (1) isolate individuals with confirmed COVID-19, (2) isolate individuals with suspected COVID-19, and (3) quarantine close contacts of those with confirmed or suspected COVID-19." https://www.pandemicoversight.gov.

            The Delta coronavirus variant surging across the United States appears to cause more severe illness and spread as easily as chickenpox, according to an internal document from the US Centers for Disease Control and Prevention. CDC Director Dr. Rochelle Walensky said, "I think that people need to understand that we're not crying wolf here. This is serious," she told CNN. "It's one of the most transmissible viruses we know about. Measles, chickenpox, this -- they're all up there." CDC  says the Delta variant is about as transmissible as chickenpox, The US averaged more than 66,900 new daily cases over the last week -- an average that's generally risen since the country hit a 2021 low of 11,299 daily cases on June 22, according to Johns Hopkins University data. "The number of cases we have now is higher than any number we had on any given day last summer," Walensky told CNN.

            In the circuits, you may recall the split Sixth Circuit panel opinion in US v. Jarvis, No. 20-3912 (6th Cir. June 3, 2021), which stated that "non-retroactive changes in the law [can] not serve as the 'extraordinary and compelling reasons' required for a sentence reduction."  However, there is nothing in the text of § 3582(c)(1)(a) that supports the contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors. 

            The good news that the inimitable Shon Hopwood has filed a powerful amici brief in the rehearing en banc on Jarvis, which effectively destroys the slim majority's argument: " this Court should refrain from holding that factors are legally impermissible unless consideration of those factors conflict with the statutory text.  To do otherwise is to substitute this Court’s judgment for Congress’s.  Because a district court’s consideration of non-retroactive sentencing-law reforms as extraordinary circumstances does not contravene any contrary statutory command, it is legally permissible (and is in fact consistent with the legislative history and plain text of the First Step Act)...."

            Hopwood was one of the first advocates to note that the First Step Act had empowered judges to review former decision previously only reachable by difficult  second-successive 2255 petitions, and paved the way for thousands of prisoner resentencings and releases.   Let's hope that this argument has a similar effect.

            Be not afraid. Let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna JD (De Paul Law, 1975), and MARJ (Vermont Law, 2020), Director,   113 McHenry Rd. #173, Buffalo Grove, IL, 60089, and Indiana, dgilna1948@yahoo.com, for English-language newsletters and questions in English and Spanish, federallc_esp@yahoo.com, Spanish language newsletter only.   Blogging at "Derek Gilna's Federal Criminal Justice Musings and Reflections."