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."