Alderson Prison COVID Count Spikes, Mirroring Trends in West Virginia; Reason for Optimism on Federal Clemencies

 

Delta Surges in West Virginia, Alderson Cases Spike; Positive Clemency Development; DOJ Pledges to Start Issuing Sentence Credits in January; Hobbs Act Robbery Case on Supreme Court's Docket; Appellate Updates

 

By Derek Gilna

 

            According to the Wall Street Journal, "West Virginia  (WV) has one of the fastest rates of new Covid-19 cases in the nation, a surge some state health officials say is at least in part due to the state’s low vaccination rate. At 46%, West Virginia has the lowest percentage of its eligible population fully vaccinated of any state, according to data from the Centers for Disease Control and Prevention." www.wsj.com, 9-20-21. This surge has been reflected in increased cases at Alderson and other facilities in WV.

            According to multiple reports, there are at least 20 prisoner cases and at least 7  staff cases, although lack of testing makes an accurate count difficult. According to one:

" Alderson was mentioned on the Local WV News, Ch 59 CBS, and said that they verified with FBOP that there are 6 staff ...they keep taking inmates and isolating them in the former Visitation Room." Also there: "Right after the news report aired, one of the 6 inmates was taken to the emergency room ...and still there."

            Coleman Low has also been hit hard: " 87 inmates tested positive for Covid-19 in Unit B2 at FCC Coleman Low.  We were sent that evening to FCC Coleman US penitentiary, Unit G1 for quarantine... 83 people from B-3 tested positive and were transferred to B-1 (which has been the 'quarantine unit' for 11 months)." Tallhassee has at least 15 positives, Bryan camp over 10, some in the hospital.

            From Aliceville: more positive cases. From Bryan: "Inmates will not be tested for Covid in units, says Medical Staff and Admin staff." Last week a 30 year old male from Tallahassee FDC died of Covid after complaining of not being able to breath and not receiving medical care  There are reports of cases from virtually every institution, with many positives ending up in the SHU, generally reserved for disciplinary segregation, not medical treatment.

            According to official DOJ figures, over half of federal prisoners have been offered (if not taken,) the COVID vaccine, but still only 50% of guards are vaccinated, meaning the problem of reinfections will persist.   The other issue is what will DOJ do when the vaccinations  lose potency, after 8 months? Interesting that CDC and the Biden administration have been pushing for booster shots, and now the FDA says that they are not necessary.   (Reminds me of when Dr Fauci told Americans not to wear a mask because it didn't protect you from the virus.)

            Sharon Alroy-Preis of Israel's Ministry of Health said the booster dose improves protection tenfold against infection in people 60 and older. "It's like a fresh vaccine," bringing protection back to original levels and helping Israel "dampen severe cases in the fourth wave," she said. And representatives for Pfizer argued that it is important to shore up immunity before protection against severe disease starts to erode. A company study of 44,000 people showed effectiveness against symptomatic COVID-19 was 96% two months after the second dose, but had dropped to 84% by around six months. www.buffalonews.com, as reported by Associate Press.

            After a successful prisoner advocates conference in Ohio directed media attention to the lack of action on new federal clemencies, there is at last positive news. Multiple sources agree that at least 4000 prisoners on home confinement with less than 4 years remaining on their sentences will be considered for clemencies. At least two of my releasees who still have pending compassionate release petitions pending have appointments scheduled to make the application.   Nonetheless, this might be the time to consider filing such an application, as clemency moves front and center in the media.  

After many delays, false starts, and open disregard for the language of the First Step Act (FSA) and the express will of Congress, DOJ has finally gone on record as stating that it will begin awarding FSA sentence credits beginning January 15, 2022. DOJ is required by law to provide evidenced-based recidivism reduction programs and productive activities to all prisoners “before” two years later, i.e., Jan. 15, 2022. The BOP has emphasized that Jan. 15, 2022 deadline throughout the entirety of its two-year “[p]hase-in” period.                                                                                                                    This follows a series of court cases across the county, which have resulted in some prisoners getting additional time off. However, the true question remains is whether DOJ will provide those programs to enable the sentence credits in the first place.   This is one of the many areas that are under discussion in Congress as we await action on pending legislation. There have, however, been no dates set for Congress to vote on any of these new proposed reform laws.             In  US v. Perez-Rodriguez,   19-1538, (1st. Cir. September 2, 2021), the First Circuit vacated Defendant's conviction of attempted enticement of a minor for unlawful sexual activity, holding that the district court committed plain error in failing to give a jury instruction on the entrapment defense. Defendant was apprehended through a sting operation in which a government agent created a profile on a dating application and, after being contact by Defendant, offered to arrange a sexual encounter with the agent's "minor boyfriend." On appeal, Defendant argued, among other things, that the district court erred in rejecting his request for an entrapment instruction. The First Circuit agreed and remanded the case for a new trial, holding that the trial court committed clear or obvious error in refusing Defendant's entrapment defense, and the error affected Defendant's substantial rights and undermined the fundamental fairness of his trial.            The Supreme Court in its next term in October  will consider the case of United States v. Taylor, docket 20-1459, from the Fourth Circuit, which will consider the issue of whether  18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).        “Courage is contagious, Defiance can lead to a recovery of will. It is inspiring to see someone who chooses to risk his well-being for a higher good. " What did you do today to improve yourself or the world around you?  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 COVID Blatant Inmate Virus Undercount Show That They Think That No One is Watching

 

First Step Act: New Possibilities for Sentence Relief; DOJ Botches DELTA Response, as Staff Also Suffers; Appellate Updates

 

by Derek Gilna

 

            While we impatiently wait for Congressional action of the plethora of pending sentence relief bills, both the First Step Act (FSA) and the Borden case have been successfully used to cut sentences. While courts battle over what the FSA wording "extraordinary and compelling" means in the context of reducing sentences, the Sixth Circuit, in US v Owens, 996 F.3d 755, (6th Cir. 2021)  has granted relief. Owens had filed for relief from a 105 year 924(c) sentence using 403(a) of FSA and 18 USC 3582(c) based upon sentence disparity and rehabilitation. This followed similar results in the 10th Circuit case of US v McGee, 992 F.3d 1035 (10th Cir. 2021.) Reversed and remanded for resentencing.

One of our favorite PLN commentators also redirected our attention to the possibilities of relief under Borden v. US, 141 S.Ct 1817 (2021). Movants will have the burden to show that they were sentenced under the elements clause of ACCA. One will have to ask what the elements of the prior conviction are, and whether it allows a conviction based upon mere recklessness or negligent conduct, but Borden does NOT apply if it says that the offender knowingly or purposely committed the offense. A timely 2255, a 2241 under the savings clause or perhaps even an FSA motion might be able to get you back into court. Although this is a complicated process, it might also be used in attacking 924(c) sentences.         See also the new case citing Borden,  US v Cardenas, 18-40338, (5th Cir. September 7, 2021). On remand from the Supreme Court, the Fifth Circuit affirmed the district court's judgment as reformed to reflect that defendant was convicted and sentenced under 8 U.S.C. 1326(b)(1). Defendant pleaded guilty of illegally reentering the United States after having been convicted of an aggravated felony, in violation of 8 U.S.C. 1326(b)(2), and was sentenced to 36 months in prison. While his certiorari petition was pending, the Supreme Court decided Borden v. United States, 141 S. Ct. 1817, 1821-22 (2021), which held that a crime capable of commission with a "less culpable mental state than purpose or knowledge," such as "recklessness," cannot qualify as a "violent felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e). The Court then granted defendant's petition, vacated the Fifth Circuit's judgment, and remanded. On remand, the parties agree that, in light of Borden, defendant should not have been sentenced under section 1326(b)(2) because Texas family violence assault can be committed recklessly. Both parties agree that defendant's conviction falls within 8 U.S.C. 1326(b)(1), which covers illegal reentry after conviction on three or more qualifying misdemeanors or a non-aggravated felony. The Fifth Circuit agreed and concluded that reformation without remand is appropriate in this case.           Recent DOJ Covid Dashboard entries show a clear pattern emerging of relatively accurate counts of staff infections and illness and an almost comical undercount of prisoner infection totals. Prison staff have filed federal lawsuits in California seeking hazard pay, and there is still pending an OSHA complaint over working conditions.   Correctional officers' unions have the financial muscle to litigate, and my suspicion is that DOJ is more careful about posting accurate numbers about guard infections as a result. My question is, how is it medically  possible that a prison has 5 guard infections, and only one prisoner infection? DOJ arithmetic.             Another problem is that prisoners see the conditions of their isolation if they complain of symptoms as punishment, since most are cut off from commissary, phones, education, food service, and often put in the SHU. From Alderson: "several inmates were exposed to the positive inmate in one of the units that is the working unit and last night an inmate in my unit had a high fever, throwing up,  and couldn't get out the bed. They took her out last night, lets see if we will all be tested...other inmates are having symptoms but are being quiet about it because they do not want to be isolated... (actually) there are 6 officers/staff and at least 5 inmates with COVID, currently. I say at least because a flight of transfers came in about a week ago and the first inmate with COVID was in general population for 2 days before being isolated."             From Carswell, complaints about undiagnosed and untreated fevers and nausea, and continuing indifference to the suffering: "Like 6 deaths and well over 700 confirmed case wasn't enough amongst all the other ill and corrupt crap. Who has common sense anymore?" Other prisons located in the South continue to report continuing high totals: Beaumont 40 staff, but no prisoners(?) reported on website. Pollock also reports 40 staff that are ill, but amazingly, only 8 prisoners(?)  Aliceville: five cases reported, but many more ill and symptomatic. Coleman Low has been a hotbed of COVID: 81 prisoners 7 staff. "One of the inbound quarantine units had 55 individuals test positive for the virus, which led to a cascade effect people in an adjacent dorm became infected."             Also from Coleman: "unit B-1 56 positive COVID cases  on August 10th (these inmates were sent to USPII for isolation, which manipulated the number of positive cases reported for the low); unit B-2 86 positive COVID cases the week following the b-2 cases; unit B-3 23 positive COVID cases the same week. The total number of positive COVID cases, here at the low, within the last 30 days is 165 inmates..."             FCI- Phoenix-Unknown amount o COVID cases. Only one unit is open under modified operations. No education programming. From Marianna: "  One unit is now off of quarantine with the other still locked down with more positives coming out every week.  Two of the ones that tested positive are in the hospital with one of those on a ventilator."             The virus is making its way north also. From Milan: "I can tell you...a third of the inmates are sick, myself included, and the vaccinated included, we are being ignored, just looking at people and you can see the sickness. Sneezing, coughing, sinus issues, cold sweats, EVERYONE is sick."             From FMC Rochester: We are currently on Code Red status due to the community. We have been locked down since April of 2020... more people sick here than what has been reported, but they only test when someone shows signs and they go to the shu...no one is saying anything. Everyone just wants to go back to normal...Things are not as what them may seem, it is worse." From FPC Duluth: Gym is being converted to a COVID ward for the anticipated surge infections.             If the spread of DELTA in federal prison follows the pattern that the initial COVID surge did, more northern prisons will be seeing a quick increase in cases. “What was in the South is now going to spread due north and then west,” said Peter Hotez, dean of the National School of Tropical Medicine at Baylor College of Medicine. States where Delta variant infections started later in summer have yet to come off their peaks.             "The Delta surge appears to have peaked in Florida and other states that drove the most recent Covid-19 surge, offering some relief after the variant upended what many thought would be a more normal summer. But cases and hospitalizations have been rising in many other states including Kentucky and North Carolina, data show, and public-health experts said the return of unvaccinated schoolchildren to classrooms, cold weather in Northern states and the holiday season could yet give the virus new opportunities to spread.             “I don’t know if we’ve peaked for all time, but the wave that was currently ongoing seems to have crested and is falling in some states but is rising in others,” said Andrew Noymer, an infectious disease epidemiologist and demographer at the University of California, Irvine. The highly contagious Delta variant fueled a rapid increase in cases, often in places where vaccination rates have lagged behind the national average. By Saturday, before the long holiday weekend slowed data reporting, the U.S. was adding about 164,000 new Covid-19 cases a day, according to a seven-day average compiled from Johns Hopkins University data. The average had dipped below 12,000 in June, the data show. Source: U.S. Department of Health & Human Services.                  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 Problems Continue at BOP, As Does Refusal to Test or Give Proper Medical Treatment to Helpless Prisoners

 

Criminal Justice Reform Still a Priority for Senators Durbin and Grassley, as Public Patience With Government Incompetence Wears Thin; DELTA Spread Continues; Clemency Updates

 

by Derek Gilna

 

            Senators Richard Durbin (D), of Illinois, and Charles Grassley (R), of Iowa, are an unlikely pair, but when it comes to justice reform, they speak with one voice. The two formed an unlikely bond as advocates for prison reform during the enactment of the landmark First Step Act, when Grassley was Chairman of the powerful Senate Judiciary Committee, and Durbin was the Ranking member. Now their roles have reversed, but their close working relationship may yet break the logjam of pending reform bills to be enacted, given Executive branch inaction and apparent disorganization.

            Unlike the previous President, the senescent Biden has yet to make a meaningful push to enact any of the important bills that have cleared the Judiciary Committee. He has been criticized for the lack of White House leadership on DELTA and Afghanistan's human tragedy. Since the President heads of the Executive branch, which includes both the Department of Justice and its subordinate branch of the federal prison system, this lack of leadership has helped perpetuate the latter organization's continuing dumpster fire of institutionalized incompetence.

            Durbin and Grassley are well aware of the widespread malfeasance that has aggravated the DELTA crisis and the absent or incompetent medical care that has needlessly prolonged the suffering. Although DOJ prison oversight is just one of the things on their expanding plates of responsibility, criminal justice advocates make sure that it is never far from their minds. You can help draw attention to these problems by writing  your elected Congressmen and Senators to demand action on these bills.  

            At a hearing in April, Grassley joined Democrats in voicing support for allowing inmates in home confinement to stay there. Taylor Foy, a spokesperson for Grassley, said his office had drafted legislation that month that would let “inmates moved to home confinement during the pandemic complete their sentences there rather than returning to prison after the pandemic ends.” Durbin had been among those who urged the Biden administration to instead reinterpret existing law as permitting perpetual home confinement for those inmates who were placed there during the emergency period.

            In the meantime, DELTA continues its march through the country, and its jails and prisons, with infection and hospitalization rates steadily climbing to levels last seen shortly before vaccinations started in March and April of 2021.   www.cdc.gov. Nonetheless, DOJ has also continued its practice of underreporting cases, rendering its website's numbers meaningless.  The standard institutional practice of not testing ill prisoners continues across the entire system.  Given the high rates of infections, in Southern states, it is not surprising that Bryan, Aliceville, Mariana, Coleman, Oakdale, Beaumont, Carswell, and Ashland continue to be hard hit.

            From one Texas camp: ". We are being refused  (the) Covid test. We have  several inmates and staff that have recently tested positive for Covid and yes, they had also had the Covid shot. I personally have asked for a Covid test 3 times and was told that the facility is not testing unless it was a mandatory or for emergency purposes. I got retaliated against right after I asked for a test."

            From Aliceville: "We have a major outbreak here at Aliceville FCI. The Covid 19 has arrived earlier this year and because of the poor medical care has spread like wildfire. I am unable to call, use e-mail or do video visits for about 10 - 14 days... please pray for us." Mariana: "outbreak with at least 20-30, including a pregnant woman, came from Food service and other staff not masking. There was no plan..."

            From Carswell: " As for Covid don't know the true numbers of cases here. I do know people in my unit have been sick and throwing up, but they are afraid to be seen by medical. Some are still traumatized by the ill treatment that we went through with the last two waves, and of course they are not mass testing. So we may have high numbers but inmates are afraid to speak up."

            The spread is not limited just to the South, however. From Lompoc and Terminal island there are report of numerous infections, but no testing. In Schuylkill FCI and the camp there are numerous positives and lockdowns: "All programs, rec, and commissary is suspended for at least 2 weeks. Staff still move between buildings 1 and 2 five to six times a day for counts." Waseca and FPC Duluth continue to have positive cases, and there are numerous infections at FMC Rochester and Sandstone. At FCI Ashland, "just wanted to inform you we have been scaled back to limited movements. Today 4 units have been closed due to Covid outbreak." Further compounding the misery is the decay of poorly-maintained facilities, with untreated mold, leaking roofs, un-repaired plumbing, and broken air conditioning.

            The Biden administration is  under heavy pressure to deliver on its campaign promise of increased clemencies and pardons. (There have been none to date.) With a major academic conference on the subject set for later this month, that pressure will only increase. Some officials, on conditions of anonymity, shared the following: contemplated releases are focused on nonviolent drug offenders with less than four years remaining in their sentences, the officials said. There is broad support for letting nonviolent inmates who have obeyed the rules stay at home – reducing incarceration and its cost to taxpayers.

            The Sixth Circuit,  in United States v. Cartwright, No. 19-5852 (6th Cir. 2021), granted relief to the defendant who was  serving a 24-year sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(1). When Cartwright was sentenced in 2005, seven of his past convictions qualified as violent felonies. In 2015, the Supreme Court’s “Johnson” decision invalidated ACCA’s residual clause. Johnson removed at least four of Cartwright’s offenses from the category of violent felonies. Cartwright brought a habeas petition challenging his ACCA status by arguing that his remaining convictions for burglary and aggravated assault do not support his ACCA sentence. The district court held that, even after Johnson, Cartwright still had at least three ACCA predicates because his Tennessee first- and second-degree burglaries qualified as violent felonies.
            The Sixth Circuit reversed. The government acknowledged that Cartwright’s claim is based on Johnson, a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” All three degrees of Tennessee burglary include entering lawfully and then opening a “receptacle” inside, with no unlawful entry or remaining required, which extends the offense beyond generic burglary, which requires unlawful entry into or remaining in. A “receptacle” in the Tennessee burglary statute need not be attached to the house.

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.

 

           

 

           

 

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."