BOP Continues to Bungle COVID-19 Response: Courts Releases Drop BOP Population 1000 a week

SCOTUS in Recess, Congress Approaches Adjournment,  Covid-19 Crisis Continues

by Derek Gilna

            Thousands of personal crisis are unfolding in federal prisons as DOJ continues to fumble its response to COVID-19.  At places like FCI Seagoville, there 61 active cases among inmates, and 882 cases as of Tuesday, about 48% of the population. Carswell's cases are approaching 200 and growing rapidly at a facility filled with the medically frail.

Staff are also getting sick, and when tempers grow frayed in places like FCI Gilmer, prisoners are also made to suffer.  Mass testing is the only answer to containing the crisis, but it has only happened in a few areas, since DOJ appears to fear negative publicity from the high number of positives it would certainly reveal.

            To file a Compassionate Release petition in federal court, you MUST file for it with the warden, and either be rejected or wait 30 days. Note that some wardens refuse to give denials in writing, perhaps to slow down the court filing process, and in that instance you must confirm via email the date you submitted the request, and when you received the denial.  This is important.   You DO NOT need to go through the BP process.

            The various district court clerk offices are struggling to keep up with the crush of filings, leading to record delays in getting new cases and other filings posted on PACER.  Despite these delays, the federal prison population is still dropping, and now stands at 159,000. Prisoner population is declining at roughly 1000 persons per week.

            If you want to stay up to date on what is happening nationally with Covid subscribe to Prison Legal News. They currently have a special going for prisoners who have never been PLN subscribers before. $1 gets you a six issue trial subscription. They will take 2 stamps as payment too. An annual subscription is $30 for 12 issues. Their address is: Prison Legal News, P.O. Box 1151, Lake Worth, FL 33460.

            Senator Rand Paul, no fan of the federal government or its "justice" system, argued this week that " Congress could make significant progress by repealing conspiracy laws that result in easier convictions and cruel prison sentences that either do not fit the crime or apply when no crime has been committed at all."

            In the circuits, US v Steward, 19-60624, (5th Cir. 7-9-20), reversed and remanded denial of FSA FAIR sentence relief, although it did not require plenary resentencing.

In an interesting white collar case, in US v. Obagi, et al, the  USCOA for the 9th Circuit reversed convictions for federal mortgage fraud, and remanded for further proceedings, in a case in which the government disclosed after the close of evidence information impeaching a government witness in violation of Brady v. Maryland. How many other cases are out there like this one?   18-50170, consol. (9th Cir. 7-17-20).

            How can we assist you today? Remember, regardless of your past, you deserve a future.   Let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD< Director,

113 McHenry Rd.   #173, Buffalo Grove, IL   60089

(Also in Indiana), dgilna1948@yahoo.com

Blogging at Derek Gilna's Criminal Justice Blog

BOP Virus Spread Continues: Prisoners Now Part of Virus Experiment at FCI Forrest City Arkansas

New Study Finds Prisoners Over Five Times More Likely to Get COVID-19

by Derek Gilna

            A new study by Johns Hopkins researchers found that, "The Number of U.S. prison residents who tested positive of Coivd-19 was 5.5 times higher than the general population." This will come as no surprise to those at Butner, where 25 prisoners have already died, as has at least one staff member. System wide, seven thousand federal prisoners have contracted the virus, and 700 infected staff members have carried the virus  home, passing it to the general population. The federal prison system, beset by decades of mismanagement and inadequate medical care,  appears powerless to stop the spread.

            FCI Forrest City, which has seen similar levels of infection, has been made into a special testing facility, with prisoners as the subjects of the study.   Unlike most other compounds, the CDC at Forrest City has tested virtually everyone, and erected large tents on the recreation yard to allegedly segregate positive cases from those that were not positive. Although DOJ states that CDC is solely there to provide care and treatment, it is not, and instead is separating prisoners into different buildings, giving them varying levels of care, and then observing, which one participant called being akin to "human guinea pigs."

            Prison Legal News (PLN) also disclosed on July 1 that a secret document "raises risk factors, security levels of prisoners." PLN said that the document is apparently being "used to evaluate the security levels of prisoners, leaving some who qualified for release to home confinement stuck in prison during the ...pandemic with little explanation of how they were evaluated."

            In the 10th Circuit in US v Cantu, 19-6043, 7-6-20, the court held that Cantu was entitled to relief on his claim that he was not an ACCA, despite the fact that he had not preserved the claim in the district court, finding "plain error." Reversed and remanded. In US v Stewart, 19-60624, (5th Cir. 7-9-20), the court held that FSA does allow defendants convicted of certain crack cocaine offense to be resentenced as if the reduced statutory minimum penalties implemented by the Fair Sentencing Act of 2010 were in place," and granted relief, but plenary resentencing was not required.   Reversed and remanded.

            In US v Denson, 19-11696, (11th Cir. 6-24-20), the court reduced a crack conviction brought under FSA from 262 to 188 months, but concurred with the 5th and 8th Circuits that a full (plenary) resentencing was not required. The 4th Circuit in Braswell v Smith, 952 F.3rd 441, (4th Cir. 3-4-20) expanded the Savings Clause of 2255(e) to include later retroactivity of a new rule not in effect at the time of sentencing, finding that a wrongful mandatory minimum was a fundamental defect, requiring relief.

            Let us know what we can do to assist you in preparing and filing  your Compassionate Release petitions, and your 2255's alleging inadequate representation of counsel. Let not your heart be troubled.

Federal Legal Center, Inc., Derek a. Gilna, JD, Director,

113 McHenry Rd, #173, Buffalo Grove, IL   60089, (Also in Indiana)

dgilna1948@yahoo.com,

Blogging as "Derek Gilna's Criminal Justice Blog."

BOP Shortcomings in COVID-19 Crisis Becoming Even More Evident

COVID-19 Continues Its March Through Federal Prisons, as DOJ Efforts Fall Short

by Derek Gilna

            COVID-19 cases continue to multiply in the federal prison system, while the number of cases nationally level off.   Unfortunately, most of the country's increase is coming in areas not previously hard-hit, and especially in the South and Southwest. Outbreaks continue in Oakdale, a previous flash-point, which is being locked down again, but have also hit women's facilities hard, including Coleman, Pekin, Carswell, and Waseca, among others. Shortages of cleaning supplies, transfer of prisoners, unscreened staff and supplier visits to facilities from outside, and systemic management failure in providing even basic health care, mean this problem will exist for months.. A recent ACLU study says additional prison deaths in jails and prisons could top 100,000.  

            In the Presidential race, former prosecutor Kamala Harris is  mentioned as Biden's top VP choice, which is bad news for prisoners. Harris' actions as California AG were problematic, and her selection and election would be a setback for sentence reform. However, there are signs that the current administration will take some decisive action  pre-election in the area or sentence reform to build upon First Step, perhaps even support for S 4034, "a bill to expand eligibility for and provide judicial review for the Elderly Home Detention Pilot Program, provide for compassionate release based on COVID-19."

            The question is whether the current (long-overdue) focus on police misconduct will translate into some positive action on sentence reform. My crystal ball is a little cloudy, but my guess is that the answer will eventually be, "yes." One unlikely champion of reform is the Business Roundtable, a group of 193 companies who are lobbying for a nationwide registry of rogue officers, many of whom are hired by other departments after being fired from another for repeated acts of misconduct.

            In the circuits, the 7th vacated and remanded a conviction for unlawfully possessing a firearm in violation of 18 USC 922(g)(9), citing Rehaif, and the court agreed that the definition of "misdemeanor crime of domestic violence" is quite complicated," and permitted the withdrawal of a guilty plea. Also in the 7th, in Day v US, 18-2398, the court agreed that it constituted prejudicial  inadequate representation of counsel for private counsel to reject a plea offer of 51 to 623 months, and instead went to trial and received a sentence of 92 months. 6-24-20.

             US v Triggs, 19-1704, 7-1-20. In the 6th, the court ruled that good conduct may be considered in a 3582 action under the FSA. US v Allen, 956 F.3d 355 (2020).

In US v Woodson, 19-6976, 6-24-20, the 4th Circuit overturned a denial of relief under FSA, for a reduction of sentence based upon cocaine offense prior to 2010, where 841(b)(1)(C) applied.

            If you have not yet filed your petition for compassionate release, and feel that your current health status or that of a family member at home is susceptible to COVID-19, please contact us for a review.  We also would be happy to review your case for possible relief based upon inadequate representation of counsel or a sentence affected by FSA. Let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, Director

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

dgilna1948@yahoo.com, Blogging at "Derek Gilna's Criminal Justice Blog."

BOP Releases Continue as Federal Prisoner Totals Continue Decline

Releases Continue as COVID-19 Continues to Spread in Prisons; Prisoner Counts Fall

by Derek Gilna

            As COVID-19 continues its spread in federal prisons, federal prisoner counts have continued to fall as more judges grant home confinement or outright release, and fewer people come into the system. Judges can read, and I expect the releases to continue for months.

              This crisis has already led to emergency policy reforms, but DOJ is still hampered by bad data, and worse management. Less than 20% of federal prisoners, about 20,000,  have been tested. (Illinois, no model of efficiency,  tests more than that in a day.)  Eight off the top 10 virus clusters in the US are now in prisons, as prisons continue to fail to conform to CDC guidelines for best practices.  The CDC has also broadened the criteria for risk to include people with a body-mass of 30, instead of 35. There also continues to be little or no DOJ consistency transfer of prisoners from one prison to the next, with some institutions blocking movement while others continue to create problems by bringing prisoners from facilities where the virus has a foothold.

            All major polls show that 95% of Americans are  in favor of at least some criminal justice system and police reform, after the recent protests and the FBI/DOJ Russia  and  Michael Flynn scandals that exposed widespread abuse of police and prosecutorial power. Regardless of the November election results, a year from now the federal justice system will look much different than the current swampy mess.

            Although the federal courts are operating at reduced capacity and few in-court proceedings except for emergencies, the circuits have been busy. In the 9th circuit, a Rehaif case did not result in sentence relief, but broadened a court's inquiry into the issue even when it was not properly raised in the district court stating, "the panel saw no basis...for limiting its review to the record adduced at trial, as the record on appeal contains additional evidence..." US v Johnson, 17-10252, 6-25-20.             In the 8th, in US v. Birdine, 19-1782, 6-22-20, the court granted FSA relief in an 841 and 846 cocaine case, and reversed and remanded for resentencing.

            Another important case in the 7th, which considers itself an incubator for legal though and precedent-setting decisions, the court incorporated language that furthered the reach of FSA: "we hold that (FSA) is its own procedural vehicle...the only limits on the district court's authority (under 404 of FSA) come from the interpretation of (FSA) itself." Nonetheless, the appeals court end up holding that the district court  did not abuse its discretion in denying cocaine-case sentence relief under the facts of this case. U.S. v Sutton, 19-2009, 6-23-20.

            Those of you with recently completed direct appeals or cases that might be impacted by FSA should consider your options, which include a 2255 alleging inadequate representation of counsel, or a petition to your sentencing court for possible sentence relief.  Have a good week, and let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Dir.

113 McHenry Rd, #173, Buffalo Grove, IL 60089 (Also in Indiana)

dgilna1948@yahoo.com, Blogging at "Derek Gilna's Criminal Justice Blog,"

BOP Still Botching COVID-19 Response as Transferred Prisoners Spread Disease

Federal Prisons COVID-19 Cases Hold Steady, But New Facilities Report Cases

by Derek Gilna

            While new COVID-19 cases continue to drop nationwide, the DOJ websites are reporting new cases in institutions previously spared.  Although some prison officials had been taking "victory laps" in public, certain staff members in some prisons went absent for 14-day stretches, and new transferees apparently brought the virus along with them. The takeaway is that American prisons will continue to be hotspots for the foreseeable future, ending the "nothing to see here" defense. According to the NY Times, "The number...known to be infected has doubled in the past month...and deaths...have also risen by 73 percent," with most known clusters now in jails and prisons.

            Of course, many judges will not see the need for release of vulnerable prisoners, but perhaps a well-drafted 2241 arguing conditions of confinement issues, as occurred in Elkton, Danbury, and Oakdale, will assist in getting relief.

            Although most prison reform bills are moving slowly in this election year, newly-filed S.4000, "A bill to require Federal Law enforcement and prison officials to obtain or provide immediate medical attention to individuals in custody who display medical distress," shows promise. Perhaps DOJ might assist the process by routinely testing its prisoners for the COVID-19 virus before transferring them to other facilities

            In the Supreme Court of the United States, in Lomax v. Marquez, 18-8369, June 8, 2020, the court unfortunately extended the PLRA's "three-strikes" rule to include even those dismissed without-prejudice, but of course the ruling permits one to file if the filing fee is paid.

            In US v Kelley, 19-30066. (9th Cir. 6-15-20), the court affirmed a FSA reduction based upon Fair Sentencing, but declined to extend relief to review of a career offender classification, stating that nothing in the Act required a plenary resentencing. In an unusual fact situation, the 10th Circuit reversed and remanded a conviction where the defendant had argued the "confession was involuntary because the law enforcement officer who interrogated him deceived him about having assess to the federal judge on the case." US v Young, 18-6221, June 16, 2020.

            In a case which should have broad implications for white-collar, health-care defendants, the 4th Circuit in US v. Brizuela, 19-4656, overturned a jury verdict and ruled that ;"the district court improperly admitted the testimony of patients whose treatment by (defendant) was not the basis for any of the charges in the indictment.: see US v. Kennedy, 32 F. 3d 876, (4th Cir. 1994).

            Here's a bit of positive news to help get your week off to a good start.  Former National Security Adviser John Bolton, who was fired by the President, in a  "tell-all" book to be published this week, says that, "Jared Kushner is the most important person in the White House." Let not your heart be troubled.

Federal Legal Center, Inc., Derek A Gilna, JD, Director

113 McHenry Rd. #173, Buffalo Grove, IL   60089

(Also in Indiana) dgilna1948@yahoo.com; "Derek Gilna's Criminal Justice Blog"

BOP's Covid-19 Problems Continue, and Congress is Not Happy

Will Covid-19 Pandemic Finally Motivate Congress to Enact Sweeping Justice Reform?

by Derek Gilna

            Lost in the noise of the global pandemic is the real frustration felt by members of Congress who have found themselves completely helpless to influence the conduct of the federal prison system's complete ineptitude in this crisis. One of the hot issues is that the "no-testing" DOJ is STILL transporting Covid-positive prisoners without regard to the current health crisis. Of course, the inability to get straight answers from this agency come as no surprise to us, since the underlying structure is dysfunctional and wardens do as they please with little accountability to anyone, including the AG.  

            Part of the problem is that Congress gets no say in who runs the system: the President names the AG, who in turn names the director, generally picking someone who has come up through the ranks from CO. HR  6678, the Federal Prisons Accountability Act of 2020, would require the appointment of the federal prison director to be subject to the advice and consent of the Senate. Given the current political climate, and the fact that criminal justice reform is a bipartisan priority, this could pass and pass quickly.  Most other bills are currently on hold as the November election campaigning rolls on.

            Neither the recent Supreme Court "pass" on hearing the details of the FCI Elkton case, or the 6th Circuit's  vacation of Judge Gwin's very broad (and landmark) injunction against DOJ changes much, since DOJ was dragging its feet on compliance. It does not change the facts that this crisis is still very much with us and will be for months to come, Nothing that DOJ has done has eliminated the virus from prison, and re-infections will continue until prisoner counts drop substantially.   Prisons are now being blamed by mainstream media for introducing the virus into rural communities ill-equipped to handle the problem. There are no secrets in prison, as DOJ has begun to realize, as judges continue to release more prisoners, disregarding knee-jerk, non-factual DOJ arguments.

            In other words, the window for compassionate release is still wide open, and will be for many months to come, give DOJ's tenuous grasp of the staying power of Covid-19;

            In the circuits, in US v. Hodkiss, 19-1423, (8th Cir. 6-8-20), the court remanded, stating that the dc must consider if defendant was eligible for a 3553(f) safety-valve, even if relevant conduct said that he possessed a firearm in an earlier case, since the safety-valve was law, not a creation of the US Sentencing Commission.

            In an interesting case, the U.S. Supreme Court in Bannister v. Davis, in a review of a Texas state habeas case, considered the question of whether "a motion brought under FRCP 59(e) to alter or amend a habeas court's judgment qualifies as...a successive motion.   We hold it does not.  (It) is instead part and parcel of the first habeas proceeding."   This holding permits review of an adverse habeas ruling without the necessity of seeking a Certificate of Appealability with the Appellate Court, a significant development.

            Let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director,

113 McHenry Rd., #173,

Buffalo Grove, IL   60089 (also in Indiana)

dgilna1948@yahoo.com, Google blogspot, "Derek Gilna's Criminal Justice Blog."

Supreme Court Puts Elkton Prisoner Release on Hold, While BOP Appeals to 6th Circuit

SCOTUS Issues Temporary Stay of Elkton Prisoner Release, Awaiting 6th Circuit Ruling

by Derek Gilna

            Last week the Supreme Court of the United States (SCOTUS) issued a temporary stay, authored by Justice Sotomayor, which put on hold federal district court rulings compelling the federal government to transfer 800 vulnerable prisoners from Elkton to either home confinement, or other institutions. The focus now shifts to the pending 6th Circuit ruling on government appeals of the same issues orally argued last week.

            In the districts, judges have been dealing with a deluge of Compassionate Release (CR) petitions, motivating federal prison officials to transfer qualified individuals, including several in which we were involved, to either home confinement or outright release. The COVID-19 releases show no sign of slowing down. as the disease continues its spread in federal prisons. At the Butner complex, out of 4000 prisoners, over 500 have contracted the illness. Judges, however , have largely strictly enforced the requirement of waiting 30 days after filing for CR at the prison level before considering CR court filings.

            Institutional lockdowns continue, with a few exceptions,  to restrict the flow of communications between prisoners and their family and outside contacts, which has resulted in a lot of "snail-mail," which we will do our best to answer in a timely fashion.

            As inner cities calm, SCOTUS considers whether to roll-back the doctrine of "qualified immunity," which has largely shielded law enforcement from accountability for questionable police tactics. We would expect this doctrine to be severely limited when the court considers the three related cases before it. Can the end of prosecutorial immunity be far behind?  The public no longer supports policy that accepts  police as above the law. Both political parties can be expected to reflect this in party platforms.           

           In  the circuits, the 7th Circuit issued a Rehaif decision in US v. Maez,  19-1287 (consol.), 6-1-20, wherein it ruled that "Rehaif's discussion of 'the well-known maxim that 'ignorance of the law...;is no excuse' makes doubly clear that 922g requires knowledge only of status, not knowledge of the 922g prohibition itself," rejecting the "willfulness" defense.   It let stand, the "narrower  requirement of knowledge of status."

            In the 6th, in US v Boulding, 6-1-20. the court on FSA grounds affirmed that "defendant is entitled to an accurate amended guideline calculation and renewed consideration of 18 USC 3553(a) factors, and a defendant seeking to raise objections must be afforded an opportunity to do so."    Finally, the 8th Circuit  in US v. Banks, the court affirmed a FSA sentence reduction from 55 years to 40 years, in a 21 USC 846(b)(a)(A) conspiracy to distribute 50 grams or more of cocaine base over government objections.

            We encourage all of your with recent convictions or unsuccessful direct appeals to

consider filing a 2255 habeas petition, alleging inadequate representation of counsel, in an attempt to win a lower sentence, as did one of our clients who was recently sent home.

May your efforts to win justice never cease, and let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director,

113 McHenry Rd., #173, Buffalo Grove, IL   60089, (Also in Indiana). dgilna1948@yahoo.com, blogging as "Derek Gilna's Criminal Justice Blog."