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."

           

 

 

BOP Accuses of MInimizing Prisoner Medical Records and Delaying Treatment to Save Money and Prevent Compassionate Releases

 

Congress, President, Ignore Federal Prison Medical, Programming, and Operational Meltdown, As Guards Continue Vaccine Protests; Appellate Updates

 

by Derek Gilna

 

            Ignore the "hard-time credit" and "65%" rumors that seem to circulate every week, but especially in times when  Congressional leaders and the President have shown little inclination to advance criminal justice reform legislation before the holidays.  Meanwhile, the prison health crisis continues to metastasize, as DELTA cases continue to grow in federal jails and prisons. Prisoners are also complaining of no First step programming (due to staff shortages) , and meager meals and empty commissary shelves.

            Although the national media is only beginning to cover these problematic conditions, there has been some coverage of prison guards grumblings and picketing over proposed nationwide federal employee vaccine mandates. 

            It is apparent that prison medical supervisors, and some staff, are actively minimizing prisoner medical conditions, and downplaying signs and symptoms of more serious conditions, including cancer and heart disease, that could be mitigated if medical staff followed accepted medical procedures. If you are contemplating seeking a release based upon medical issues, be sure to document your conditions and check your medical records for inaccuracies.

            Although there is no judicial review of a CARES denial, there is no question that a well-drafted petition for compassionate release can put you back on the CARES radar, and possibly put you in home confinement. Also, are you actively taking advantage of all other possible avenues for sentence relief? Have you considered filing a 2255 habeas alleging inadequate representation of counsel?

            Should you be lucky enough to win release, the job market for ex-prisoners has never been better, with businesses desperate for employees regardless of your record, especially in service, manufacturing, and trucking. Most of these new jobs come with impressive bonus and benefit packages.

            No one should be surprised that many of the same federal facilities that were epicenters of COVID-19 are now infested with DELTA. From Elkton, with at least one new death: "(Although) numerous inmates are currently in the hospital,...chief of the PHS staff in the Health Services Department claim there are no positive cases of Covid-19 at FCI-Elkton, nor are any FCI-Elkton inmates in the hospital for Covid-19-related symptoms," concluding, " if a person refuses to acknowledge that a problem exists no corrective action can be taken to rectify the problem." There are serious outbreaks at Carswell: "unit 2 North which is part of the High Rise Building has been locked down due to Covid;" Alderson, " There are many officers here at Alderson that say they are not getting the shot we have had like 12 or so officers with Covid in last month ."

            Ft Dix again has problems: " building 5811, has numerous active cases of COVID and has been locked down; Coleman continues to experience cases and lockdowns, it appears that FMC Rochester has  growing problem, with new staffers falling ill, and many prisoners also sick.

            Virtually every facility is experiencing shortages of basic necessities in commissary, and "short rations" in the dining room, including Aliceville, Waseca, and Forrest City, with numerous protests over mass punishment.

            A new study shows the direct connection between the number of prison Covid cases and community cases. "Jails and prisons are major sites of novel coronavirus (SARS-CoV-2) infection...Using data from Cook County Jail—one of the largest known nodes of SARS-CoV-2 spread in the United States—in Chicago, Illinois,...We found that jail–community cycling was a significant predictor of cases of coronavirus disease 2019 (COVID-19), accounting for 55 percent of the variance in case rates across ZIP codes in Chicago and 37 percent of the variance in all of Illinois...The data suggest that cycling people through Cook County Jail alone is associated with 15.7 percent of all documented COVID-19 cases in Illinois and 15.9 percent of all documented cases in Chicago as of April 19, 2020." https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00652, "Incarceration And Its Disseminations: COVID-19 Pandemic Lessons From Chicago’s Cook County Jail," by Reinhart and Chen.

            From the circuits, there is a new positive Hobbs Act case, United States v. Scott (3rd Cir. September 2021). Joining 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.

            In United States v. Abdulaziz (1st Cir. June 2021), the First Circuit vacated a defendant’s sentence which had been enhanced based on a 2014 conviction under state law for distributing marijuana, which the sentencing court held was a “controlled substance offense” under the Guidelines. The First Circuit held that convictions under state laws that do not distinguish between marijuana and hemp, as defined and legalized under federal law, cannot serve as “controlled substance offenses” under the Guidelines.

            In United States v. Nicolescu (6th Cir. October 2021), the court ruled that the enhancement for receiving stolen property and engaging in the business of receiving and selling stolen property does not apply to defendants who are selling property they themselves stole. The enhancement for the production or trafficking of unauthorized access devices can apply even if a defendant is also being sentenced for aggravated identity theft if the trafficking goes beyond the mere possession, transfer, or use of an unauthorized access device.

            Radu Miclaus and Bogdan Nicolescu were charged with operating a “cyber fraud ring” out of Romania and were convicted of wire fraud, wire fraud conspiracy, computer fraud conspiracy, aggravated identity theft, money laundering conspiracy, and conspiracy to traffic in counterfeit service marks. On appeal, the defendants raised several claims, including several challenges to their sentences. One challenge focused on whether the enhancement under U.S.S.G. 2B1.1(b)(4) was warranted, which applies if “the offense involved receiving stolen property, and the defendant was a person in the business of receiving and selling stolen property.” As a matter of first impression, the Court agreed that the enhancement should not have applied and rejected the government’s argument that it was sufficient for a defendant to “receive” the property from a co-conspirator or to “receive” the property from a computer virus.

            In an important 2255 case, in the United States Court of Appeals for the Fifth Circuit No. 20-50481 United States of America, Plaintiff—Appellee, versus Antonio Maurice Gardner, Defendant—Appellant, Gardner entered a plea of guilty without filing a motion to suppress the evidence against him. The district court, without an evidentiary hearing, denied his motion to withdraw his plea. "We hold that Gardner alleged sufficient facts to require a hearing upon the motion to withdraw, and if granted, his motion to suppress. We vacate and remand."

            Gardner, pro se, had moved to appoint new counsel, saying that he felt misled by Bailey because Bailey previously told him that objections to the PSR had been filed. As will become plain, it is significant that Gardner then also asserted that Bailey gave him inconsistent information as to the availability of audio or video footage of the search that led to his arrest, leaving him unsure of “what to believe.”

            In US v Grant, 20-4078, (6th Cir. October 1, 2021, "Defendant Joshua Grant shot his ex-girlfriend after a night of arguing at her apartment. He fled the scene and police apprehended him nearby in possession of a gun. He later pleaded guilty to two counts of violating 18 U.S.C. § 922(g) for unlawfully possessing that firearm—one for being a convicted felon, the other for being a domestic violence misdemeanant. The district court entered judgment on both convictions and imposed concurrent 120-month sentences. Grant appeals. He challenges the entry of multiple § 922(g) convictions and sentences for the same incident of firearm possession. He also challenges the district court’s application of the cross-reference for attempted murder in calculating his Sentencing Guidelines range. For the following reasons, we remand with instructions to vacate Grant’s sentence on one of the § 922(g) counts and to merge the two counts of conviction into one."

`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 and DOJ Plagued by Breakthrough Infections of Vaccinated Prisoners

 

CDC Sounds New Warning on "Breakthrough" Infections; Guards File Grievance to Avoid Taking Vaccine:; Legislative Window losing Quickly, Safe Sentencing Still in Committee; Supreme Court Advances White-Collar Cases; Appellate Updates

 

by Derek Gilna

 

            The CDC issued a interesting statement on its website recently: "COVID-19 breakthrough infections are expected. COVID-19 vaccines are effective and are a critical tool to bring the pandemic under control; however, no vaccine is 100% effective at preventing illness. Some fully vaccinated people will get sick, and some will even be hospitalized or die from COVID-19. " www.cdc.gov,  10-15-21. The COVID death of vaccinated General Colin Powell has sparked new controversy.   Remember, initially all vaccines were initially  "experimental," which permitted their distribution without the normal months-long waiting period. Now, the government deems them safe and non-experimental; however, 7,178 have died of these breakthrough infections, and 25,000 have been hospitalized.

            There was also some worrisome new data on adverse reactions to vaccinations. AERS, (Adverse Events Reporting System) our vaccine adverse effect reporting system, showed at the beginning of this week 16,000 deaths, 23,000 disabilities, 10,000 MI/myocarditis, 87,000 urgent care visits, 75,000 hospital stays, and 775,000 total adverse events. The VAERS system is widely known to under-report events by 1-10%.  Eudravigilance, the European reporting system now associates 26,000 deaths in close proximity to administration of the vaccine. Whistleblower data from the CMS system (Medicare charts) showed close to 50,000 deaths in the Medicare group shortly after the vaccine. www.fda.gov.

            Elkton, which was the epicenter of the DOJ pandemic, has again experienced an apparent outbreak, with one death, and one gravely ill, but of course, none of this is reflected on the website. It has been reported that over 50 are ill with COVID-like symptoms. DOJ admits to significant cases of COVID-19 and 92 of its 122 institutions are at a Level 3 (Intense COVID-19 protocols in place as of October 5, 2021). A number of institutions have also cancelled inmate visitation. There are also reports from Terre Haute that the entire prison is on lockdown for COVID infections. One prisoner noted, " The (vaccine vials)  are exposed to the elements, they are left sitting on carts for many hours on end and they are supposed to be kept at below freezing temperatures and they will sit in the hall way."

            There was another fatality at Tallahassee, and many positive cases at Allenwood, with individuals not reporting symptoms to avoid being put in the SHU. Coleman has seen multiple cases from vaccinated individuals.

            According to the Department of Justice Office of Inspector General survey earlier this year, 63% of the Federal Bureau of Prisons (BOP) staff reported that they had already been vaccinated or were planning to get vaccinated as soon as possible, by the BOP or otherwise.  However, nearly 20 percent of respondents said that they were not sure whether they would get vaccinated and another 18 percent said they did not plan to get vaccinated at all. www.forbes.com, https://experience.argis.com.

            DOJ has mandated all employees must be vaccinated by November 22, 2021, or risk termination. Eric Speirs, President of AFGE Local 501 in Miami (FDC Miami) submitted a grievance that the mandate is unconstitutional and also argues that inmates, who cannot be mandated to take the vaccine, have more rights than the staff who supervise them. “I’m all for vaccines but this is not a personal issue, it is a Constitutional issue.” (Good to see that the government employees are fully on board with following the Constitution...)

            Another concern  is the lack of programming, and the breakdown of basic products and services at most institutions (including soap), generally blamed on staff shortages. The General Accounting Office said, "“Institution staff we interviewed stated that staffing shortfalls result in excessive overtime usage and a shortage of staff available for inmate programming such as drug treatment and education programs."

Congress continues to be bogged down with multiple meetings on the Infrastructure and other social justice measures with huge price tags, with important bills like Safe Sentencing in committee. On September 30, Senators Grassley and Durbin introduced, Senate Bill 2814, “Terry Technical Correction Act,” to reverse the narrowing of the Supreme Court's Terry decision.             Two new cases involving medical professionals accused by DOJ of drug-dealing have found their way to the U.S. Supreme Court. Couch v. United States, 20-7934, from the 11th Circuit, asks, "(1) Whether the trial court erred by conflating the valid defense of a crime as an element of that crime in its instruction to the jury regarding a physician alleged to have violated 21 U.S.C. § 841(a); and (2) whether the trial court erred by not explaining or adequately defining “good faith” in its instructions to the jury regarding a Controlled Substances Act case involving a physician.         Ruan v. United States, 20-1410, also from the 11th, asks, " Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he 'reasonably believed' or 'subjectively intended' that his prescriptions fall within that course of professional practice."          In the circuits, in  Bridges v. United States (March 7th Cir. 2021), Mar 23, 2021,  the Seventh Circuit remanded a defendant’s 2255 motion for an evidentiary hearing, holding that the defendant had made a sufficient showing that he may have received ineffective assistance of counsel based on his lawyer’s failure to argue that his Hobbs Act robbery was not a crime of violence under the career offender provision of the sentencing guidelines. While the Seventh Circuit had not yet decided whether Hobbs Act robbery was a crime of violence at the time of the defendant’s sentencing, other circuits had, the categorical approach under the Guidelines was well-known, and this was enough to warrant at least a hearing to determine whether the defendant’s counsel failed to reasonably investigate the issue before the defendant’s sentencing.         In U.S. v. Crooks, 997 F.3d 1273 (10th Cir. 2021) the 10th Circuit held that a district court is able to correct an erroneous career offender enhancement when a defendant qualifies for First Step relief, along with every other circuit who has considered the same issue. It quoted a previous decision which stated, "If a district court erred in the first Guideline calculation, it is not obligated to err again."          In a case that will probably shortly find its way to the U.S. Supreme Court, U.S. v. Goodall, 18-10004, (9th Cir. October 13, 2021), the defendant, facing more than 70 years in prison for his role in multiple armed robberies,  pleaded guilty to two counts of conspiracy to commit Hobbs Act robbery (18 U.S.C. 1951(a)) and brandishing a firearm during and in relation to a crime of violence (18 U.S.C. 924(c)(3)), with a 20-year sentencing recommendation. He waived his right to appeal his conviction or sentence. The court imposed a 14-year sentence.            About 18 months later, the Supreme Court (Davis, 2019), held that a conspiracy to commit Hobbs Act robbery cannot be a crime of violence under section 924(c)(3)'s residual clause. Goodall sought to vacate his conviction and sentence, arguing that Hobbs Act conspiracy is not a “crime of violence” under 924(c)’s “elements clause.” The Ninth Circuit dismissed. Goodall’s appellate waiver foreclosed any challenge based on Davis; the waiver was knowing and voluntary. The “illegal sentence” exception to an appellate waiver does not apply; it does not include illegal convictions. The rationale for the “illegal sentence” exception rests on the inherent uncertainty in sentencing, which does not exist for convictions. Although there always remains a chance the law could change in a defendant’s favor, the defendant knowingly and voluntarily assumes that risk because he receives a presumably favorable deal under existing law.       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 Delta Containment is Failing, As Deaths Continue to Climb, Driven By Unvaccinated Prison Guards

 

CDC: No Need for Most Vaccinated or "Recovered" COVID Individuals to be Given Booster; Merck Seeks Approval for New COVID Pill; DELTA Continues Its March Through Federal Prisons; Federal Judge in 9th Circuit Blocks Section 1326 Charges in Landmark Ruling; Appellate Updates

 

by Derek Gilna

 

            A lot has changed since COVID-19 ravaged American society, and taken the lives of 714,000 people. www.nytimes.com, 10-11-21. Over half of those deaths have occurred under the Biden administration.  Although official DOJ statistics list less than 300 deaths in the federal prison system, the number continues to climb, especially given the agency's practice of not counting newly-released prisoners or those who died in the hospital hours after being "released." www.nytimes.com, 8-31-21. I know of three federal prisoners who have died in the past 10 days. including one at Carswell in Texas. and one in Tallahassee. Although the number of Delta cases has begun to drop in the outside world, numbers at many federal prisons continue to climb, and some have more than 100, with entire units shut down.

            This, of course, exposes as a lie or at least an exaggeration the stock DOJ response in compassionate release cases that the virus is "well-managed," and "thousands of prisoners have been vaccinated." The difference of course is in the outside world over 56% have received a professionally-administered vaccine, ww.beckerhospitalreview.com, and another 30% have already had the disease and recovered.www.health.columbia.edu. That means that over 86% of Americans in the outside world have some form of immunity to COVID.

            However, at Oakdale, whereas over 70% of the prisoners have officially been vaccinated, only 34% of the guards have been, according to the local union rep, Ronald Morris. www.reuters.com. I thought our President had issued a federal mandate on this issue?

            The other unreported issue is the botched DOJ vaccination process. In an anonymous federal prison in Texas from July and August of this year, the percentage of previously vaccinated federal prisoners testing positive for DELTA was 74% (with unvaccinated prisoners CVID-positive at a 93% infection rate). www.cdc.gov, September 21,2021.  Carswell prisoners recall seeing boxes of vaccines sitting on a hot loading dock for many hours, which would reduce its potency exponentially. Does anyone think that the understaffed and under-resourced federal prison system did any better job of storing and administering the vaccines in prisons other than Carswell?

            The other under-reported issue is that there are tens of thousands of "recovered" federal prisoners suffering symptoms of "Long Covid," which can be life-threatening to the elderly, overweight, or immuno-compromised prisoner. "What we have found is that in some patients...the virus triggers an autoimmune reaction...the virus tricks the body into attacking itself." Dr. Swati Deshmukh, Prof. at Northwestern University Feinberg School of Medicine.  www.wlstv.com. Of course, one would hope that even a federal judge should know that the level of medical care in federal prison is non-existent.

            The good news is that there is now about to be approved an oral anti-viral medication from Merck that has reduced hospitalization by about half, accord to the Wall Street Journal, www.wsj.com, 10-8-21. Even DOJ should be able to hand out a pill. Also, today's Journal also said that "People who both had Covid-19 and are vaccinated don't need to rush to get the booster," according to multiple health experts. "Another factor that people who were infected and vaccinated should weigh before getting a booster is whether the extra dose could raise their potential risk of myocarditis, inflammation of the heart..."

            Meanwhile, federal prisoners continue to suffer: "At Coleman Low...61 positive cases (in one unit) and...87 positive cases (in another)...they aren't testing so they can reopen the compound." At Carswell: "there are 45 women from that work unit who contracted the virus on the Work unit. Seven women are still in the hospital, a few who were placed on ventilators and one who has been unresponsive for over two weeks now. They have schedule to take her off life support today as she has been in a coma for over two weeks." Others complain that they are not getting their proper medication because of staff shortages, and are denied treatment, like IV's, that would be given in the outside world. At Tallahassee, multiple infections, and at least one new death. At Yazoo City: " Yazoo USP (Where inmates were sent from Lexington and Butner) and the Yazoo low is under Code Red.." At USP Beaumont: " USP is on lock down here 2 units are on quarantine." 

            Unfortunately, at more than one DOJ prison facility, including one at the highest security level, the following narrative is occurring:  "Here, there is a number of guards that are protesting the mandate and picketing outside the complex.  Guards are being stretched to their limits on overtime as they cannot keep shifts staffed.  Programs are not happening, education staff are being sent to work units and G.E.D. and programs which are supposed to help inmates "rehabilitate" and reduce their risk of recidivating are being cancelled, postponed or liquidated." Sound familiar?

            In United States v. Gardner, No. 20-50481 (5th Cir. 2021), Gardner was indicted for possession with intent to distribute a mixture or substance containing a detectable amount of methamphetamine. He retained counsel (Bailey) and pleaded guilty without a plea agreement. Three months later, Gardner’s initial PSR was filed. On the day of sentencing, Bailey orally moved for and obtained a continuance to file objections to the PSR. Days later, Gardner, pro se, moved to appoint new counsel, saying that Bailey previously told him that objections to the PSR had already been filed and that Bailey gave him inconsistent information as to the availability of audio or video footage of the search that led to his arrest. The court granted Bailey’s subsequent motion to withdraw and appointed new counsel;
            Gardner then moved to withdraw his guilty plea, alleging ineffectiveness by former counsel Bailey, who told him “that a motion to suppress would be filed after the entering of the plea.” The district court denied the motion to withdraw the plea without an evidentiary hearing, sentencing Gardner to 240 months’ imprisonment. The Fifth Circuit vacated. Gardner alleged sufficient facts to require a hearing upon the motion to withdraw, and if granted, his motion to suppress.

            In a court ruling with potentially broad implications for U.S. immigration cases, a federal judge in Nevada found that a criminal law that dates to 1929 and makes it a felony for a person who has been deported to return to the United States is unconstitutional.

            U.S. District Judge Miranda Du in Reno, in an order issued Wednesday, found the law widely known as Section 1326 is based on “racist, nativist roots” and discriminates against Mexican and Latinx people in violation of the equal protection clause of the Fifth Amendment .“Anybody who works in federal courts knows the statute,” Franny Forsman, retired longtime chief of the Federal Public Defender’s Office in Nevada, said Thursday. “There really are a large number of cases that have been brought over the years under that section. They’re mostly public defender cases.”

            Section 1326 of the Immigration and Nationality Act makes it a crime for a person to enter the U.S. if they have been denied admission, deported or removed. It was enacted in 1952 using language from the Undesirable Aliens Act passed by Congress in 1929. Penalties were stiffened five times between 1988 and 1996 to increase its deterrent value. Forsman said she expected the government will appeal to the 9th U.S. Circuit Court of Appeals in San Francisco. www.washingtontimes.com.

            In United States v. Yates, No. 18-30183 (9th Cir. 2021), Heine and Yates, bank executives, were convicted of conspiracy to commit bank fraud (18 U.S.C. 1349) and 12 counts of making a false bank entry (18 U.S.C. 1005). The government told the jury that the two conspired to deprive the bank of accurate financial information in its records, the defendants’ salaries, and the use of bank funds.
            The Ninth Circuit vacated. There is no cognizable property interest in the ethereal right to accurate information. Distinguishing between a scheme to obtain a new or higher salary and a scheme to deceive an employer while continuing to draw an existing salary, the court held that the salary-maintenance theory was also legally insufficient. Even assuming the bank-funds theory was valid, the government’s reliance on those theories was not harmless. The court instructed the jury that it could find the defendants guilty of making false entries as co-conspirators, so the court also vacated the false-entry convictions. The court noted that insufficient evidence supported certain false entry convictions.

            We watching a case in the federal district court in Minnesota, which has implications for those currently on home confinement or who hope to be soon and are concerned about being returned to jail. In Anderson v. Birkholz, the judge said:   

"The magistrate judge disagreed (with the government position.)  Noting that § 3624(c)(4) states that "[n]othing in this subsection shall be construed to limit or restrict the authority of the Director ...under section 3621," and that § 3621 gives ...broad discretion in designating a prisoner's place of confinement, the magistrate judge concluded: A federal prisoner may not seek habeas relief on the grounds that § 3624(c)(2) circumscribes the discretion otherwise granted ...under § 3621(b). And Anderson offers no reason to believe that the (bureau) overstepped its (broad) discretion under § 3621(b) in determining where he should be placed for the final months of his custodial term. (R&R at 4.)

            In his Objection, Anderson argues at length that § 3621(b), and the broad discretion it guarantees to the BOP, applies only to the BOP's designation of a prisoner to a prison facility—not to home confinement determinations.  This Court has held otherwise—even under the First Step Act. See, e.g., United States v. Johnson, No. 14-cr-00159 (DWF/TNL), 2021 WL 1550460, at *3 (D. Minn. Apr. 20, 2021) ("[B]ecause release to home confinement is a placement decision, the Court finds that it is solely within( the federal prison system's)  discretion to dictate." (citing 18 U.S.C. § 3624(c)); United States v. Brown, No. 12-cr-00172(3) (SRN), 2020 WL 1922567, at *2 (D. Minn. Apr. 21, 2020) ("[T]he (federal prison system) has exclusive authority to determine the placement of prisoners. The First Step Act, CARES Act, and Second Chance Act merely give eligible inmates the possibility to be considered for home confinement or halfway house placement." (citations omitted)); United States v. Kluge, No. 17-cr-00061 (DWF), 2020 WL 209287, at *3 (D. Minn. Jan. 14, 2020) ("Nothing in the statutes amended by the FSA permits the Court to place Defendant in home confinement. Under the FSA, the authority to place a prisoner remains with the (bureau)." (citing 18 U.S.C. §§ 3624(c)(4) and 3621(b)))." This should prove very interesting.

            Be not afraid and let not our 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."

 

 

 

 

EQUAL Act Passes the House, Moves to Senate; DELTA Continues to Afflict Federal Prisoners

 

House Overwhelmingly Passes EQUAL Act, Sends It to Senate; DOJ Fails to Follow CDC Testing Requirements; Lompoc Covid Class Action Continues;  Fascinating new U of C Study on How Incarceration Doesn't Reduce Recidivism;  Supreme Court Accepts New Case Seeking Wider FSA relief; New Compassionate Relief Grants for Non-Covid Grounds;  An example of how DOJ Alters Medical Records; FCI Phoenix Censors Us 

 

by Derek Gilna

 

            The US House voted 361-66 to pass the EQUAL Act to end the statutory disparity between powder and crack cocaine sentences. Now it moves to the Senate, where it enjoys considerable bi-partisan support, with co-sponsors Senators Rob Portman (R-OH), Cory Booker (D-NJ), Rand Paul (R-KY), Dick Durbin (D-IL), Thom Tillis (R-NC), and Patrick Leahy (D-VT). Although there is little opposition to the bill in the Senate (other than the usual suspect from Arkansas) no vote has been scheduled. However, it is possible if Congressional leaders, who pushed this along despite little apparent prodding from the President, might act without him.

            Senator Durbin also introduced in the past week  S. 2914:" A bill to amend the First Step Act of 2018 to permit defendants convicted of certain offenses to be eligible for reduced sentences, and for other purposes."    There is no text available but we will follow this closely.  

            Although DOJ acts as if it doesn't exist, Delta refuses to go away, as the numbers of infected continue to climb, while the number of cases in the public at large continue their decline. Thus far, there are few reported cases of MU or other variants bypassing vaccine protections, so that is a bit of good news. However, take a look at the latest excerpts from the CDC on testing protocols for correction institutions: "Ensure that separate physical locations (dedicated housing areas and bathrooms) have been identified to 1) isolate individuals with confirmed COVID-19 (individually or cohorted), 2) isolate individuals with suspected COVID-19 (INDIVIDUALLY – do not cohort), and 3) quarantine close contacts of those with confirmed or suspected COVID-19 (ideally individually; cohorted if necessary). The plan should include contingencies for multiple locations if numerous infected individuals and/or close contacts are identified and require medical isolation or quarantine simultaneously...

            Testing persons with signs or symptoms consistent with COVID-19, regardless of vaccination status: Incarcerated/detained persons with symptoms, regardless of COVID-19 vaccination status,  should be given a mask , moved to medical isolation in a separate environment from other individuals, medically evaluated, and TESTED. Facility staff should carefully evaluate and support the mental health needs of individuals before and during medical isolation. If incarcerated/detained persons receive a positive test result for SARS-CoV-2, they should remain in medical isolation until they meet the criteria for discontinuing isolation,... A single new case of SARS-CoV-2 infection in any correctional and detention center staff or incarcerated/detained person should be considered an outbreak. If an outbreak is occurring, facilities should also perform daily symptom and temperature screening for all incarcerated/detained persons who have been exposed to someone with confirmed or suspected COVID-19 until it has been at least 14 days since the last positive test. " www.cdc.com.             I am unaware of any DOJ facility that is following this protocol, hence there continue to be outbreaks and unnecessary illness, risk of death, and suffering

            Although CARES releases continue, infection numbers have climbed in the most overcrowded (or poorly-managed) facilities. From Alderson Camp: " We have 645 inmates here...positive cases that have been found in GP and moved to our Visitation Building. There is no mass testing, therefore the inmates found positive that were moved from A Building to visitation could have very possibly infected others that they cohabitated with. We are PACKED into both of our buildings, two to a cube... flights (came) in as well...There are mattresses as well as TV's now placed into our education building to stage as an additional quarantine space."

            Springfield Medical Center also has its share of problems: " We have had 25 deaths, and a couple weeks ago they had 5 officers test Positive for Covid and they said we had zero inmates with Covid. And now they are reporting only 4 inmates have Covid and that's without testing anybody, especially all the inmates that are coughing and can't get out of bed. They are refusing to test anybody and a lot of us work with sick guys that use a breathing machine to stay alive... " Another at the same prison said: " My whole unit is coughing and they won't test anybody even when we ask. Some of us work in the medical section with inmates that cant breathe already and those guys are asking to be tested so they don't put anybody in danger and they still won't test them and tell them to go to work even if they feel sick."

            Perennial hot spot Carswell had another death in the past week: "Carswell ...is out of the tests to test us...the women are complaining of symptoms but can't get tested and they are leaving them in the CC5 unit... the most vulnerable inmates...I am a care level 4 and have already been hospitalized for a month with lung problems and still have long Covid symptoms... since Monday they we have had 12 test positive we were told they are out of test so go figure..."  Tallahassee has many ill prisoners, in both the men's and women's sides, with one death,  and Victorville women's is locked down due to increasing cases. Englewood RDAP is on quarantine. From Bryan women's camp: "We are not being tested...,any guards are ill and not coming to work."  FMC Rochester has at least 5 staff and at least 5 inmates test positive. Milan is revaccinating prisoners since it appears that original shots were either contaminated or administered incorrectly.

            The long-running Lompoc class action continues, with slow, steady progress, including increased testing, transfers to reduce population, and discovery on the poor medical procedures proceeding.   We will keep a watchful eye on this litigation. Torres v. Milusnic, USDC, CD of CA, (Western Division - Los Angeles),#: 2:20-cv-04450-CBM-PVC.

            A fascinating new study from the University of Chicago published these findings:

."Based on a much larger meta-analysis of 116 studies, the current analysis shows that custodial sanctions have no effect on reoffending or slightly increase it when compared with the effects of noncustodial sanctions such as probation... All sophisticated assessments of the research have independently reached the same conclusion. The null effect of custodial compared with noncustodial sanctions is considered a “criminological fact.” Incarceration cannot be justified on the grounds it affords public safety by decreasing recidivism. Prisons are unlikely to reduce reoffending unless they can be transformed into people-changing institutions on the basis of available evidence on what works organizationally to reform offenders." https://www.journals.uchicago.edu.

            The US Supreme Court as granted cert to a new petition, 20-1650,  Carlos Conception v. US, which sets forth this question: Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

            Another example of why you need to make sure that your medical records accurately reflect your chronic medical problems: "Today I had a pulmonary function test because of damage to my lungs from the virus. Here's the disturbing part: I had the virus in June of 2020, the PFT wasn't approved until May 4, 2021, and then they waited another almost 5 months to do the test. When I filed for a reduced sentence because of my risk from the virus and the damage done, the prison said I didn't have any damage because my medical records didn't say I had damage. The court believed them and denied my motion.

            (DOJ) intentionally delayed my treatment so there would be no record of any damage done by the virus. Now it's too late because my motion got denied and if I file again it would be useless because now they say the vaccine is fixing everything. I still have to use my inhaler several times a day. That won't ever go away. And they wonder why I don't trust government employees, like I'm wrong for not trusting them."

            One of the many new cases reducing sentences based upon FSA considerations, with no Covid justification is United States v. Lizarraras-Chacon, No. 20-30001 (9th Cir. 2021  )In 2011, Chacon was charged with conspiracy to possess with intent to distribute 1,000 grams or more of heroin and possession with intent to distribute 100 grams or more of heroin. The prosecution moved under 21 U.S.C. 851 to increase the mandatory minimum sentence based on his 2010 Oregon drug conviction for which Chacon was sentenced to 90 days in jail. Chacon entered a plea agreement. The parties jointly recommended a total sentence of 210 months of incarceration. His total Offense Level included enhancements for possession of a firearm, aggravating role as a leader, and using children in the offense. The resulting applicable guideline range was 210–262 months. The court sentenced Chacon to 210 months’ imprisonment.
            The district court rejected his motions for 18 U.S.C. 3582(c) sentence reduction, based on Sentencing Guidelines Amendment 782, which reduced most base offense levels in the U.S.S.G. 2D1.1 Drug Quantity Table. The Ninth Circuit reversed. The legislative and judicial developments affecting mandatory statutory minimums are relevant considerations to the 18 U.S.C. 3553(a) factors at step two of a motion for reduction of sentence under 18 U.S.C. 3582(c)(2). The district court apparently believed that it did not have the discretion to consider such developments.

            FCI Phoenix, apparently unhappy that we reported the accurate Covid counts at its institution, blocked our newsletter, but this will not deter our continued reporting of facts, not government propaganda. (Keep the alternate email of dagilna1948@yahoo.com close, just in case.)    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."