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They were released from prison because of COVID. Their freedom didn't last long. USA Today (July 20,
News article discussing recently filed federal lawsuits alleging that people released from prison because of COVID-19 are now being sent back over minor infractions, such as not picking up a call from staffers overseeing their home confinement.
Article (July 20, 2022)
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United States v. Powell, 3:06CR189-RJC (W.D.N.C.)
Mr. Powell is 68 years old, has served 170 out of a 262 month sentence, and is currently on CARES Act HC. If Mr. Powell was sentenced today, he would not be designated a “career offender.” Pro bono counsel was able to work with the AUSA on this case who ultimately did not oppose the motion as long as the ECR argument was limited to the age of the defendant only, as opposed to the career offender and home confinfement issues.
Unopposed Motion (Mar. 2, 2022)
Order (Mar. 8, 2022)
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United States v. Barragan, 3:03CR231-GCM, Dkt. No. 771 (Feb. 25, 2022 W.D.N.C.) (CARES Act HC Grant)
Home Confinement Clearinghouse Win! Mr. Barragan is 52 years old and has completed approximately 16 years, or 75%, of his prison term. He went to trial in 2005 on marijuana conspiracy and 924(c) charges and was convicted on all counts and sentenced to 353 months, which was later reduced to 292 months. Mr. Barragan entered BOP custody on July 11, 2006 and his projected release date was September 4, 2025. On June 30, 2021, Mr. Barragan was one of the carefully selected inmates that the Bureau of Prisons transferred to home confinement pursuant to its authority under the CARES Act after determining he was a low-risk offender who did not pose a danger to the community and in light of his significant health issues. He now lives with his sister and has obtained steady employment with a significant wage in a reputable factory, and he has complied with every condition of his release.
After Mr. Barragan obtained pro bono counsel through the Clearinghouse who filed a compassionate release motion on his behalf, the court granted Mr. Barragan’s compassionate release motion finding that Mr. Barragan would be high-risk for illness or death from COVID if he were sent back to prison. Although the DOJ has rescinded the OLC Memo, the Court noted that the new memo kept open the possibility that the BOP might return individuals like Mr. Barragan back to prison. The court also rejected the government’s argument that the motion was moot b/c Mr. Barragan was on home confinement. Notably, Mr. Barragan had filed two prior cr motions—all pro se—which had been denied.
Motion (Dec. 24, 2021)
Response (Jan. 3, 2022)
Reply (Jan. 7, 2022)
Order Granting Release (Feb. 25, 2022)
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United States v. Patel, 2:11CR20468 (E.D. Mich. Nov. 22, 2021)
Mr. Patel had been released on CARES Act Home Confinement for 17 months. Hi CR motion argued ECR existed because client will be sent back to prison, not for violating the rules of release or for committing a new crime, but because he is four months shy of qualifying for expedited clemency under the Biden clemency program. Government countered that there was no current threat of Mr. Patel being returned to prison and cited to a Law 360 article that misrepresented AG Garland's November 2, 2021 testimony before Congress. Mr. Patel countered the incorrect information in his reply. The court, however, denied relief, finding that the "argument is premature and the issue is not ripe for review."
Order (Nov. 22, 2021)
Reply (Nov. 25, 2021)
Gov. Response (Oct. 29, 2021)
Supplemental CR Motion (Oct. 8, 2021)
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Motions to Stay
When you first get your case, you may discover that your client has filed a pro se compassionate release motion that has not yet been ruled on. In some cases, only the pro se motion has been filed, while in other cases, the government has responded, and the client has replied. In most situations where the client has filed a pro se motion, however, you will want to file a motion to stay the court’s ruling until you can gather the appropriate documents and draft your client’s supplemental motion (or reply brief). If you have any further questions, please contact resource counsel at crresource@nacdl.org.
Estrada Motion to Stay, Claiborne Ferguson (W.D. Tenn.)
Esparza Motion to Stay, Miles Pope (D. Idaho)
Cloud Unopposed Motion to Stay, Erin Hallagan ( W.D.N.C.)
Cloud Stipulated Request to Lift Stay, Erin Hallagan (W.D.N.C.)
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Individuals on CARES Act HC Charged With Technical Violations
United States v. Rojas, 13CR528 (D. Md)
Client was driving home from class when Hurricane Ida struck and was rerouted due to road closures and became stuck on side of the road. Called case manager before phone died and was eventually towed home. He called the halfway house the next day. The halfway house violated him, and he was given a hearing, and ultimately remanded to jail where he is now awaiting designation to a BOP facility. Court granted compassionate release
Emergency Motion (Sept. 30, 2021)
Reply (Nov. 15, 2021)
Order (Nov. 15, 2021)
U.S. v. Levi,8:04-cr-00235-DKC (D. Md. July 6, 2021)
Gwen Levi, a 76 year old grandmother released on CARES Act home confinement, was ordered back to prison when she missed a call from her supervising officials while attending a computer skills class. See "A grandmother didn’t answer her phone during a class. She was sent back to prison." (WaPo, Jun. 26, 2021).
Gwen's story has a happy ending, because Judge Deborah Chasanow granted her pending compassionate release motion, finding that due to Ms. Levi's "potential return to full custody," a reduction in sentence was appropriate. "Woman who was arrested after missing officials' phone call while in computer class is headed home." (USA Today, Jul. 6, 2021). Gwen is home!!
Motion (Second Supplement) (May 13, 2021)
Defense Counsel Status Update (June 24, 2021)
Motion for Emegency Status Hearing (July 2, 2021)
Opinion (July 6, 2021)
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Family Circumstances CR Grants
United States v. Brim, 8:93CR98 (C.D. Cal. Feb. 26, 2021) (cr granted for client previously sentenced to life, based on the client’s need to act as caretaker for his ailing mother, sentencing disparities between codefendants, his rehabilitation, and his great release plan).
Motion (November 25, 2020)
Order (Feb. 26, 2021)
United States v. Thompson, 2021 WL 2418573, 3:17CR170-CHB (W.D. Kentucky June 14, 2021) (granting compassionate release solely “on the unique family circumstances presented in this case.” Ms. Thompson has lived through a series of family tragedies while incarcerated: “her husband, Lowell Washington, died tragically, and she submitted correspondence from her children regarding their struggles after losing both a sibling and step-father while their mother is incarcerated.” On top of that, her mother, who was caring for her children, became very sick. CR granted. (Bonus cite at the end to other family circumstances grants.)
Order (June 14, 2021)
United States v. McCauley, No. 07CR4009-SRB (W.D. Mo. June 23, 2021) (Grant based on family circumstances; initial motion focused on changing societal attitudes about marijuana, but the attorney pivoted and added a family circumstances argument in the reply brief, which turned out to be the winning issue. A great lesson on the importance of kitchen sinking our arguments in second look/excessive sentence cases---throw it all in)
Motion (addressing changing attitudes about marijuana) (Apr., 23, 2021)
Response (May 21, 2021)
Reply (June 3, 2021)
Order (June 23, 2021)
United States v. Cruz, ECF No. 3:94-CR-112-JCH 2021 WL 1326851 (D. Conn., Apr. 9, 2021) (18-year-old originally sentenced to LWOP for double murder; sentence previously reduced to 35 years in light of Miller; had served 31 years; court reduced sentence to time served citing as ECR the age at the time of his crimes, the length of his sentence, his extraordinary rehabilitation, the COVID-19 pandemic (BMI 27 and hypertension), and his family circumstances (sick mother).
Order (Apr. 9, 2021)
United States v. Whitt, 4:18CR786-AGF (E.D. Mo. July 13, 2021) (granting compassionte release on family circumstances grounds because Whitt is needed to care for hsi three children following the death fo the children's mother on June 29, 2021).
Order (July 13, 2021)
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Responses to OLC Memo
Letter from Sens. Durbin and Booker to AG (Apr. 23, 2021)
Letter from Rep. Coleman and 27 Bipartisan members of Congress to President Biden(Apr. 8, 2021)
Letter from FAMM, NACDL, Other Orgs to AG (Apr. 1, 2021)
Letter from Democracy Forward, FAMM, NACDL and Other Orgs to AG (Aug. 4, 2021) (requesting that the OLC memo is rescinded).
Letter from Maryland Delegation to AG (Sept. 17, 2021) (urging action to be taken to keep those on CARES Act HC home)
Letter from Congressional Representatives to President Biden (Sept. 17, 2021) (requesting clemency be granted to the 4,000 people on home confinement.
Letter from National Business and Employers to President Biden (Aug. 25, 2021) (requesting that those on CARES Act be allowed to stay out of prison and in their jobs).
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United States v. Busby, 3:16CR211 (N.D. Tex Apr. 20, 2021)
Early Home Confinement Compassionate Release grant. Court held: "After considering all the information surrounding Defendant’s Chronic Lymphocytic Leukemia, his advanced age (68) and unique circumstances, and the elevated risk caused by the COVID-19 Pandemic, should the BOP end his home-confinement designation and reincarcerate him, the court finds that Defendant has shown extraordinary and compelling circumstances."
Order (Apr. 20, 2021)
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United States v. Reyes, 1:09CR239 (M.D.N.C. Dec. 11, 2020)
District court agrees that defendant’s home confinement conditions affect her need for access to medical care, noting that her doctor's appointments have to be pre-authorized by her RRC case manager and needed repeated removal of her GPS monitor to undergo diagnostic and surgical care; sentence reduced to time-served.
Defendant's Unopposed Motion to Reduce Sentence (Dec. 8, 2020)
Order granting compassionate release (Dec. 11, 2020)
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United States v. Calhoun, 3:08CR77-DPJ (S.D. Miss.)
2021 Home Confinement grant. Defendat argued in motion that hc does not resolve the cr motion because, after the pandmic ends, "Mr. Calhoun may be returned to a BOP correctional facility to complete his sentence—regardless of how faithfully he has followed every rule imposed and regardless of how well he has resettled into the community." The Court granted the motion, noting that Calhoun, who is on CARES Act HC, could be returned to prison." While Calhoun's medical issues "alone" might not be enough to grant relief, "in this case the BOP released Calhoun to home confinement over a year ago and he has had no infractions" "These are unusual times and circumstances, and the Government has not pointed to any further penological goals that are served by requiring Calhoun to remain on home confinement for six additional months to satisfy the technical requirements of a non-binding policy statement."
Supplement to Motion for Compassionate Release (Mar. 18, 2021) (arguing that
Order Granting Compassionate Release (May 14, 2021) (n
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United States v. Donnes, 1:16CR12 (D. Montana) (CARES Act HC grant)
CR Motion (May 21, 2021)
Government Response to Supplemental Reply (Aug. 10, 2021) (arguing that motion was not ripe becuase no one on CARES Act had yet been recalled back to prison).
Supplemental Reply (July 29, 2021)(discussing CARES Act HC and OLC Memo)
Order Granting Compassionate Release (Sept. 21, 2021) (finding ECR due to the defendant's need for assistance with his medical conditions which had been made logistically difficult due to his home confinement restrictions)