United States v. White

UNITED STATES OF AMERICA, Plaintiff, v. THOMAS DANIEL WHITE, Defendant.

No. 1:19-CR-10024-CBK

United States District Court, D. South Dakota, Northern Division

April 25, 2022

MEMORANDUM AND ORDER

CHARLES B. KORNMANN, UNITED STATES DISTRICT JUDGE

I. BACKGROUND

Mr Thomas White (“defendant”), having pled guilty to Bribery Concerning Programs Receiving Federal Funds, in violation of 18 U.S.C. § 666(a)(1)(B), was sentenced by this Court in October 2021 to 70 months imprisonment, three years of Supervised Release, and ordered to pay $23, 000 in restitution. Doc. 57. On March 17, 2022, defendant White motioned this Court for compassionate release pursuant to the First Step Act of 2018, 18 U.S.C. § 3582(c)(1)(A), and in the alternative, to be released to home confinement to finish the remainder of his sentence. His two arguments center around the COVID-19 pandemic, as well as living conditions at his prison camp. Mr. White was not ordered to surrender into the custody of the U.S Marshal Service until December 7, 2021. He is currently housed at Federal Prison Camp Yankton, in South Dakota, with a scheduled release date of January 21, 2024.

Defendant's guilty plea stemmed from a 22-count indictment related to his kickback scheme where he corruptly received thousands of dollars due to his position with the Dakota Nations Development Corporation, in return for approving Tatanka's Constracting LLC's bid to build an elderly village complex on land belonging to the Sisseton-Wahpeton Oyate Sioux Tribe, a tribal government that received federal funds. Instead of ensuring his Tribe's elderly population, some of its most vulnerable members received the best quality contractors and builders to construct its new facility, Mr. White reached out to John German with an offer. German, a worker at the Tribal Employment Rights Office, formed Tatanka Contracting LLC with Kevin Trio and Mike Cebulla. With German's majority ownership, Tatanka could gain Indian preference for construction contracts planned by the Tribe. In White's call to German, he offered to ensure Tatanka received the bid to construct the elderly village in return for an under-the-table payment. Mr. German estimated that defendant White was paid approximately $22, 000 to $23, 000 in $7, 000 increments, while the defendant contests he only received approximately $7, 500. What's not in dispute is that White went behind the back of the Tribe to line his own pocket. Through this bribe, Tatanka was awarded the contract netting $465, 45.07 in profits. Because Mr. White betrayed the trust of his Tribe and community, he was sentenced to 70 months in custody.

Mr. White has only just begun to serve his sentence. No doubt, COVID-19 is a severe public health crisis that has upended our federal prison system and the nation more broadly. But because none of the reasons offered by the defendant approach an extraordinary and compelling circumstance, nor do the factors listed under 18 U.S.C. § 3553(a) lean in favor of an early release, Mr. White's motion for a reduction in term of imprisonment should be denied.

IL DISCUSSION

A. Legal Standard

The Sentencing Reform Act of 1984, Pub. L. 98-473, Title II, § 212, authorized, inter alia, the district court, upon motion of the Director of the BOP, to reduce a prison term after considering the factors set forth in 18 U.S.C. § 3553(a), “if it finds that extraordinary and compelling reasons warrant such a reduction and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” The United States Sentencing Commission was established by the Sentencing Reform Act, codified at 18 U.S.C. § 3582(c)(1)(A). Effective November 1, 2006, the Sentencing Commission adopted Guideline § IB 1.13, the policy statement on reduction of a term of imprisonment pursuant to § 3582(c)(1)(A). These provisions are known as the compassionate release provisions of the federal criminal code and the Federal Sentencing Guidelines.

On December 21, 2018, the First Step Act of 2018 was enacted. Pub. L. 115-391. The First Step Act amended, inter alia, § 3582(c)(1)(A) to increase the use and transparency of the compassionate release process. The Act added district court authority to grant compassionate release upon motion of a defendant after the exhaustion of administrative remedies. Frustratingly, though, the Federal Sentencing Guidelines have not been amended since passage of the First Step Act in 2018.^[1] This Court proceeds in three steps: (1) assessing whether the defendanthas exhausted his administrative remedies; (2) determining whether defendant has demonstrated that there are extraordinary and compelling circumstances warranting early release; and (3) if he has demonstrated such circumstances, whether the 18 U.S.C. § 3553(a) factors weigh in favor of early release. United States v. Marcussen, 15 F.4th 855, 858 (8th Cir. 2021) (citing 18 U.S.C. § 3582(c)(1)(A)(i)).

B. Jurisdiction

Since sentences are final judgments, a court ordinarily “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). However, an exception exists where a court “may reduce the term of imprisonment” when “extraordinary and compelling reasons” exist under 18 U.S.C. § 3553(a) and that the “reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i); United States v. Taylor, 28 F.4th 929, 930 (8th Cir. 2022) (per curiam). The defendant carries the burden to show a sentence reduction is warranted under 18 U.S.C. § 3582(c). United States v. Jones. 836 F.3d 896, 899 (8th Cir. 2016).

C. Exhaustion

This Court can only grant a sentence reduction upon motion of the defendant “after [he] has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier.” 18 U.S.C. §3582(c)(1)(A). See United States v. Houck, 2 F.4th 1082, 1083-84 (8th Cir. 2021). Here, Warden K. Bennett denied Mr. White's request for consideration of compassionate release on January 25, 2022. Accordingly, this matter is now ripe for adjudication.

D. Compassionate Release

Compassionate release offers defendants with “extraordinary and compelling reasons” the opportunity to leave prison prior to the conclusion of their sentence. 18 U.S.C. § 3582(c)(1)(A)(i). However, § 3582(c)(1)(A)(i) does not define what “extraordinary and compelling reasons” may be; rather, that was left to the Commission. And, as this Court has noted, the Commission has failed to offer such explanations to date. Prior to the First Step Act, though, the Commission established four categories for district courts to consider when reducing a defendant's term of imprisonment. Pursuant to U.S.S.G. § IB 1.13, Application Note 1, these four examples of extraordinary and compelling reasons for compassionate release are: (A) Medical Condition of the Defendant. -

(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), endstage organ disease, and advanced dementia.

(ii) The defendant is-

(I) suffering from a serious physical or medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.

(B) Age of the Defendant. - The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.

(C) Family Circumstances.

(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.

(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.

(D) Other Reasons. - As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).

The United States Court of Appeals for the Eighth Circuit has not yet decided whether the district court is bound by the Sentencing Commission's policy statement when considering a compassionate release motion under the First Step Act amendment to § 3582(c)(1)(A). “While some courts adhere to the pre-First Step Act policy statements, other courts have ruled that the pre-First Step Act policy statements are inapplicable, and that a judge has discretion to determine, at least until the Sentencing Commission acts, what qualifies as extraordinary and compelling reasons.” United States v. Rodd, 966 F.3d 740, 745 (8th Cir. 2020) (cleaned up). To date, the Eighth Circuit has not yet addressed whether district courts are bound to the pre-First Step Act applicable policy statements. See United States v. Crandall, 24 F.4th 582, 584 (8th Cir. 2022).

Chief Judge Lange has held that the “discretion given to the Director of the BOP in § IB 1.13 comment note 1(D) also allows federal judges to consider ‘extraordinary and compelling reason[s] other than' those specifically described.” United States v. Dillabaugh, ...