Systemic Failures Create Needless Health Emergencies; DOJ
Refuses to Follow the Law on FSA Sentencing Credits; Disturbing News on COVID
Vaccine Side Effects; Appellate Updates
by Derek Gilna
Although
the First Step Act (FSA) sentencing
credits fiasco is the principal topic of this week's newsletter, permit me a
moment to put to rest any fears that you might have that CARES releases will
end soon. Ending CARES means that the
federal government gives up all of the emergency power that they unilaterally seized
in 2020 during the initial COVID-19 outbreaks, and that is unlikely to happen
until Biden leaves office in three more years. The recent relaxing of mask
mandates is happening not only because of declining infections, but also
because it is an election year. Follow
the votes, not the science.
CARES also
gives the federal prison system a badly needed tool to eliminate elderly,
non-violent offenders, whom they clearly lack the ability (or the will) to
properly care for. However, what the federal criminal justice machine gives in
one hand, it generally takes away with the other. By slowing down earned FSA
credits (capped at one year by statute), DOJ stabilizes a declining prisoner
population, giving it time to build up its numbers with the expanding
prosecutions of "national security," health care, and medical fraud,
among others.
Unfortunately
for the shrunken prison staffs that haven't already resigned, retired, or been
fired or prosecuted for misconduct, this means that they have a lot of
dissatisfied individuals, who can read for themselves that almost of all of them without serious
violence or guns in their background should get at least a year off immediately.
This is an area ripe for litigation, and if you are approaching or at the 50%
mark, or your sentence ends in the next two years, it is time to get busy and
start your remedies, although this might be one instance where, as an obvious
statutory violation, would not require remedies to be exhausted to get into
court. I have yet to see a case that
says an administrative agency has the power to negate the clear language of
Congress. This very topic is currently in the US Supreme Court, and I expect a
favorable decision on the limited power of administrative rule making of
agencies like the federal prison system. It
is hard to overestimate Congress' disgust with that system, which operates as
if it was above the law on a daily basis. As noted by the well-respected columnist
Walter Pavlo, "A new BOP director has
not yet been appointed, but one cannot be appointed soon enough to change the
poor management and deception of those currently in charge. It will take a
monumental effort to change an organization that is failing the prisoners it
houses and the employees who are becoming increasingly frustrated."
Supporting
that opinion is the fact that federal prisons still continue to have levels of COVID
infection that do not exist outside prison walls. Virtually no one dies in the
outside world from COVID, although a few die that also have it, in addition to
other serious health problems. However, in prison, numbers are still high, and
deaths are still occurring. At Ashland
for instance, which apparently has 200 cases, a staff member recently said to a
prisoner, "'We are N0T going to test... just deal with it.' When someone
does test positive now, that person is removed and nothing else is
done..." FMC Rochester still has a
major outbreak, and one prisoner recently passed away. From another prisoner:
"Good afternoon. Fifteen women tested positive for COVID today at Alderson
FPC." The nightmare ebbs and flows, but
continues.
As noted by
Pavlo, "Hanlon’s razor is the adage that states, 'never attribute to
malice that which is adequately explained by stupidity.'" What else can
explain the continuing elevated numbers? It is no coincidence that the United
States is both the country with
the highest incarceration rate worldwide and at the same
time leads the world in COVID-19 infections and deaths. Correctional
institutions are Petri dishes of infection that spread the virus not only
within the prison but to the communities in which they are located. According
to a Center for Disease Control and Prevention (CDC) study undertaken in
2021, “... incarcerated populations have experienced disproportionately
higher rates of COVID-19–related illness and death compared with the general
U.S. population, due in part to congregate living environments that can
facilitate rapid transmission ...” Interesting enough, the study by the CDC was
conducted at FCI Texarkana in Texas.
Three
additional compassionate release cases to report: United States v. Epps, 2020
WL 7332854, at *1 (D. Conn. Dec. 14,
2020), regarding Brooklyn MDC.
Prisoner had served 30 months of 40 month sentence, and had Obesity,
Hypertension, Asthma;
United States v. Cervantes, 2020 WL 7353913, at *1 (D.N.M.
Dec. 15, 2020), prisoner sentenced to 60 months, has served 40 months at FCI
Mendota, suffered from Obesity, HPV, and lymphatic swelling; United States v.
Way, 2020 WL 7397796, at *1 (E.D. Pa.
Dec. 17, 2020), prisoner was 54 years old, had Pulmonary Sarcoidosis and Hypertension,
and required to take Prednisone, which suppresses immune system.
Unfortunately,
evidence is building that there are many more adverse vaccine reactions than
are being publicly reported. See the most recent study: " COVID-19 and
All-Cause Mortality Data by Age Group Reveals Risk of COVID Vaccine-Induced
Fatality is Equal to or Greater than the Risk of a COVID death for all Age
Groups Under 80 Years Old as of 6
February 2022," by
Kathy Dopp, MS Mathematics and Stephanie Seneff, PhD 13 February 2022. "As of 6 February 2022, based on publicly
available official UK
and US data,
all age groups under 50 years old are at greater risk of fatality after
receiving a COVID-19 inoculation than an unvaccinated person is at risk of a
COVID-19 death. All age groups under 80 years old have virtually no benefit
from receiving a COVID-19 inoculation, and the younger ages incur significant
risk. This analysis is conservative because it ignores the fact that
inoculation-induced adverse events such as thrombosis, myocarditis, Bell’s
palsy, and other vaccine-induced injuries can lead to shortened life span. When
one takes into consideration the fact that there is approximately a 90%
decrease in risk of COVID-19 death if early treatment is provided to all
symptomatic high-risk persons, one can only conclude that mandates of COVID-19
inoculations are ill-advised. Considering the emergence of antibody-resistant
variants like Delta and Omicron, for most age groups COVID-19 vaccine
inoculations result in higher death rates than COVID-19 does for the unvaccinated."
https://www.skirsch.com/covid/Seneff_costBenefit.pdf
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In
Shorter v. US, 21-2091, ( 7th Cir., March
3, 2022), Shorter pleaded guilty to possessing a stolen firearm,
which he used to threaten a person who, unbeknownst to Shorter, was a U.S.
Marshal. The district court sentenced him to 117 months’ imprisonment. In
December 2020, with approximately one-and-a-half years remaining on his
prison term, Shorter sought compassionate release, 18 U.S.C.
3582(c)(1)(A)(i), arguing that his hypertension and sickle cell disease made
him more susceptible to a severe COVID-19 infection. The government noted
that Shorter did not suffer from sickle cell disease, but only carries the
sickle cell trait. The district court denied the motion, finding Shorter’s
medical conditions did not qualify as extraordinary and compelling reasons to
grant compassionate release and noting his serious criminal record. On
appeal, Shorter argued that the fact that his hypertension was well-treated
did not sufficiently address whether his condition increases his COVID-19
risk, that the district court ignored evidence that people with sickle cell
trait are more susceptible to COVID-19, and that the court failed to consider
his post conviction conduct. After the parties completed briefing, Shorter was
released to home confinement, scheduled to end in May 2022. The Seventh Circuit
dismissed the appeal as moot.
In US
v. Asbury, 21-1385, (7th Cir. March
3, 2022), Asbury came to a controlled buy with 82.2 grams of 99%
pure methamphetamine. He was charged with distributing at least 50 grams of
the drug, 21 U.S.C. 841(a)(1), (b)(1)(A)(viii). The indictment alleged that
Asbury had a prior conviction for a serious drug offense. The PSR,
“reflecting reports from others,” proposed holding Asbury responsible for
15,819.3 grams of a mixture containing methamphetamine, plus 82.2 grams of
the pure drug. When the judge asked whether the prosecution had any
additional evidence, he was told that it did not. Rather than nail down the
factual basis for the additional drug-quantity allegations, the court
addressed whether the distribution of drugs other than those directly
involved in the offense could be considered as relevant conduct, then adopted
the PSR, raising Asbury’s offense level from 30 to 36, then added two levels
for perjury, resulting in a guidelines range of 360 months to life. Had the
offense level been 32, his range would have been 210-262 months. Because of
Asbury’s prior conviction, his statutory minimum sentence was 180 months. The
court addressed 18 U.S.C. 3553(a)’s factors, stating that any error in
Asbury’s offense level, “would not affect my sentence," and imposed a
360-month sentence. The Seventh Circuit vacated and remanded for
resentencing. The district court erred in calculating Asbury’s relevant
conduct. The judge’s brief statement did not establish that the guideline
error was immaterial.
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,
firststeprelief@yahoo.com).
federallc_esp@yahoo.com, Spanish newsletter, but NO
inquiries.
Blog: "Derek Gilna's Federal Criminal
Justice Musings."
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