USA v. White Horse et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JEROME WHITE HORSE JR,
Defendant.
3:20-CR-30058-RAL
OPINION AND ORDER DENYING
MOTION FOR COMPASSIONATE
RELEASE
Jerome White Horse Jr. brings a motion for compassionate release, arguing his
hypertension, age, and the CO VID-19 pandemic are grounds for granting the motion. This Court
finds these conditions fall short of establishing an extraordinary and compelling reason to grant
release and denies the motion.
I. Facts and Procedural History
In February 2021, White Horse pled guilty to voluntary manslaughter. Doc.116; Doc.254
at 2. The factual basis statement of the plea agreement set forth that the year before, on or about
February 12, 2020, White Horse assaulted Lawrence Laffrey by beating him with a garden hoe
and aided and abetted Samuel Frances White Horse in the commission of that offense. Doc. 117
at 1. The offense was committed in response to a quarrel, and White Horse's use of force was
unjustified and unreasonable. Doc. 1 17 at 1-2. Laffrey suffered blunt force trauma to the head
from the assault and died several days later from his injuries. Doc. 117 at 1. The guidelines range
for the offense was 63 months to 78 months incarceration. Doc. 255 al16.
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On May 17, 2021, this Court sentenced White Horse to 63 months incarceration and three
years of supervised release. Doc. 254 at 2; Doc. 255 at 1. White Horse is serving his sentence in
a federal correctional facility in Big Spring, Texas. Doc. 255 at 1. His release date is scheduled
for July 23, 2025. Doc. 254 at 2; Doc. 255 at 1. In November 2021, White Horse submitted a
request for compassionate release to the Bureau of Prisons ("BOP"). Doc. 245-1 at 1; Doc. 255 at
1-2. The BOP denied his request a week later. Doc. 245-1 al 2; Doc. 254 al 5; Doc. 255 at 2.
On January 14, 2022, White Horse filed a pro se motion for compassionate release, Doc.
245, and the Federal Public Defenders Office for North Dakota and South Dakota has filed a
supplement in support of the motion, Doc. 254. The First Step Act (FSA), Pub. L. No. 115-391,
132 Stat. 5194 (2018), allows an incarcerated person to seek compassionate release from a federal
court if he or she has exhausted administrative remedies within the BOP. United States v. Rodd,
966 F.3d 740, 744 (8th Cir. 2020); United States v. Condon,458 F. Supp. 3d 1114, 1117 (D.N.D.
2020). White Horse filed a request for compassionate release with the BOP on November 5, 2021,
which was denied. Doc. 254 at 5, Therefore, White Horse has exhausted administrative remedies,
and his claim is ripe for review.
White Horse is 62 years old and had served around 22% of his federal sentence at the time
briefs were submitted. Doc. 245 at 1;Doc. 254 at 1-2; Doc. 255 at 1 . He was vaccinated against
the COVID-19 virus in February and March of 2021. Doc. 249 at 25. Doc. 254 at 4; Doc. 255 at
2. As of 2022, White Horse's medical records show that he suffers from glaucoma, hypertension,
pain in his right knee, and lower back pain. Doc. 248 at 1, 10; Doc. 249 at 22,109-11. An x-ray
taken in October 2020 showed that White Horse has moderate osteoarthritis in his right knee, Doc.
253 at 37. White Horse's hypertension is monitored and treated with medication, Doc. 255 at 10,
and he can walk for a substantial distance and does not have chest pain. Doc. 248 at 18.
2
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White Horse also self-reported that he was formerly diagnosed and treated for prostate
cancer. Doc. 138 at 16; Doc. 248 at 18, 21. White Horse alleges that he is suffering a reoccurrence
of the cancer, but there is nothing in the medical record to support this beyond White Horse's self-
reported diagnosis. Doc. 245 at 1; Doc. 248 at 18, 21; Doc. 254 at 5, 13-14; Doc, 255 at 9. The
medical record also notes that White Horse told medical staff he has suffered from rectal and
urinary bleeding because of his previous cancer treatments. Doc. 249 at 20; Doc. 254 at 13; Doc.
255 at 9.
V/hite Horse claims that correctional staff will not acknowledge his cancer or allow him to
undergo a cancer screening or receive treatment. Doc. 245 at 1; Doc. 254 at 1,14. However, in
November 2021, medical staff scheduled White Horse for a urology appointment on January 4,
2022 in response to White Horse's concerns about rectal bleeding, although it is nol clear if White
Horse attended this appointment. Doc. 249 at 23; Doc. 255 at 9; Doc. 258 at 6. Further, a federal
medical center in Butner, North Carolina did a lab test on a sample from White Horse on March
31, 2022, although the results of the lab test are not summarized in the medical record. Doc.249
at 84-86; Doc. 255 at 9-10.
II. Legal Standard
A "district court has broad discretion in determining whether proffered circumstances
warrant" compassionate release under the First Step Act. United States v. Logeins, 966 F.3d 891,
893 (8th Cir. 2020). A court may grant a motion for compassionate release if it finds that, "after
considering the factors set forth in section 3553(a) to the extent thai they are applicable, . . .
extraordinary and compelling reasons warrant . . . a reduction" in the petitioner's sentence. 18
U.S.C. § 3582(c)(l)(A) (emphasis added). To grant a motion for compassionate release, a court
must also determine that the "defendant is not a danger to the safety of any other person or to the
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community." U.S.S.G. § 1B1.13(B)(2). Ultimately, the petitioner bears the burden of establishing
that a sentence reduction is warranted. See United States v. Jones, 836 F.3d 896, 899 (8th Cir.
2016).
HI. Discussion
A. 18 U.8.C. § 3553(a) sentencing factors
The section 3553(a) sentencing factors include:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for . . . the
applicable category ofoffense committed by the applicable category of
defendant as set forth in the [Sentencing Commission] guidelines . . .
(6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conducl , . . .
18U.S,C.§3553(a).
White Horse claims the sentencing factors weigh in favor of his release, noting he was in
a low criminal history category under the federal guidelines. Doc. 254 at 18-19; Doc. 258 at 9-
10. The United States responds that the seriousness of White Horse's conviction weighs against
granting his motion for compassionate release. Doc. 255 at 14-17. Here, the offense involved
dragging the victim from a vehicle and beating him severely such that he died shortly thereafter.
' White Horse's co-defendant went to trial and presented testimony from a forensic pathologist
raising some question of whether the victim had been suffering from an aneurism causing his
erratic behavior before the beating, so there is some question over whether the beating caused the
death or perhaps hastened the death. Doc. 242-2 at 417-30.
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Doc. 255 at 14-15, Although White Horse was in a tow criminal history category under the
sentencing guidelines, the United States notes that he has an extensive criminal history including
convictions for another manslaughter charge years ago, resisting arrest, driving under the
influence, and reckless driving. Doc. 255 at 15. A number of White Horse's prior convictions
were too old to contribute criminal history points under the federal sentencing guidelines, and
tribal court history does not count toward a criminal history category computation. Doc. 255 at
15-16.
Here, the recency and severity of the offense weigh against granting White Horse's motion
for compassionate release. At this point, White Horse has only served around a quarter of his
federal sentence, and the sentence initially imposed—the bottom end of the guideline range of just
63 months for voluntary manslaughter—reflected the seriousness of the ol'fense, promoted
deterrence, protected the public, avoided unwarranted sentence disparities, and properly accounted
for White Horse's history and characteristics. When the I'aclors present at sentencing have not
changed, then these sentencing factors weigh in favor of denying a motion for compassionate
release. See Rodd, 966 F.3d at 747 (quoting United States v. Rodd, No, CR 13-230 ADM/JSM,
2019 WL 5623973, at *4 (D. Minn. Oct. 31, 2019)) (affirming the denial of an incarcerated
person's motion for compassionate release when "the Section 3553(a) factors present at sentencing
have not changed").
B. Extraordinary and Compelling Reason
The policy statement of the Sentencing Commission. U.S.S.G. § 1B1.13, states
"extraordinary and compelling reasons" may exist in the following circumstances:
(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
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required. Examples include metastatic solid-tumor cancer, amyotrophic lateral
sclerosis (ALS), end-stage 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, 01-
(Ill) 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 al 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 (or 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).
U.S.S.G. § 1B 1.13 cmt. n.l(A)-(D) (cleaned up). Many courts, including this Court, have assumed
that the authority granted to the Director of the BOP under U.S.S.G. § 1B1.13 cmt. n.l(D) is
coextensive with federal judges. See Condon, 458 F. Supp. 3d at 1118 (collecting cases); United
States v. Dillabaueh, No. 3:18-CR-30062-01-RAL, 2020 Wl. 3402392. at *3 (D.S.D. June 19,
2020) (stating that "the discretion given to the Director of the BOP in § 1B1.13 comment note
1(D), also allows federal judges to consider extraordinary and compelling reasons other than those
specifically described" (cleaned up)).
White Horse argues there are grounds for his release under subsection A(ii) and D, citing
the risk ofCOVID-19 infection, his age, and his health conditions in support. Doc. 254 at 1-2,
10-18. Most of White Horse's supportive briefing discusses the health risks of COVID-19
exposure. White Horse notes that the CO VID-19 infection rate in BOP custody is almost five
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times higher than in the general population, and prison conditions are conducive to spreading the
virus. Doc. 254 at 11, 15. As of April 21, 2022, there were 1,076 incarcerated persons at Big
Spring correction facility where White Horse is housed. Doc, 254 at 2. Further, White Horse
claims that his hypertension and history of prostate cancer pul him at higher risk of complications
from the COVID-19 virus. Doc. 254 at 11-15. And he points out that vaccines do not provide
complete immunity from the COVID-19 virus and that vaccine efficacy decreases over time. Doc.
258 at 3^t.
The United States responds that White Horse has been vaccinated, and the risk ofCOVID-
19 exposure itself is not an extraordinary and compelling reason to grant compassionate release.
Doc. 255 at 3-4, Additionally, the BOP has worked to minimize the risk ofCOVID-1 9. Beginning
at the start of the COVID-19 pandemic in March 2020, the BOP placed more than 41,150
incarcerated persons on home confinement to minimize health risks from COVID-19 exposure.
Doc. 255 at 17. The BOP has also administered COV1D-19 vaccines for over a year. Doc. 255 at
12. As of April 24, 2022, 347,980 total doses ofCOVID-19 vaccines had been administered by
the BOP. Doc. 255 at 12. Incarcerated persons have also been offered booster shots. Doc. 255 at
13. Big Spring correctional facility had no confirmed COVID-19 infections among incarcerated
persons and staff as of April 24, 2022. Doc. 255 at 1 , And furlher, White Horse's medical needs
are being treated while he has been incarcerated. Doc. 255 at 13,
White Horse does not qualify for compassionate release under IJ.S.S.G. § 1B1.13 cmt.
n.l(A)(ii). He is not "suffering from a serious physical or medical condition, ... a serious
functional or cognitive impairment, or [is not] experiencing deteriorating physical or mental health
because of the aging process . . . that stibstcmlially diminishes [his] ability . . . to provide self-care
within the environment of a correctional facility and from which he or she is not expected to
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recover:' U.S.S.G. § 1B1.13 cmt. n.l(A)(ii). See United States v. Rodriguez. 424 F. Supp. 3d
674, 682 (N.D. Cal. 2019) (holding a petitioner did not satisfy U.S.S.G. § 1B1.13 cmt. n.l(A)
when he "was capable of independently performing activities of daily living"). Therefore, this
Court now looks to whether subsection D applies, stating thai compassionate release may be
granted for reasons "other than, or in combination with, the reasons described in subdivisions (A)
through (C)." U.S.S.G. § 1B1.13 cmt. n,l(D).
"[T]he mere existence ofCOVID-19 in society and the possibility that it may spread to a
particular prison alone cannot independently justify compassionate release, especially considering
BOP's statutory role, and its extensive and professional etTorts to curtail the virus's spread."
United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). "Though certainly relevant, the threat of
contracting COVID-19 in the prison environment, still real at this time, is not by itself
sufficient reason to modify a lawfully imposed prison sentence." United States v. Marcussen, 15
F.4th 855, 858 (8th Cir. 2021). However, some courts "have found extraordinary and compelling
reasons for compassionate release when an inmate shows both a particularized susceptibility to the
disease and a particularized risk of contracting the disease at his prison facility." United States v.
Feiline, 453 F. Supp. 3d 832, 841 fE. D. Va. 2020); see also United States v. Newton, 996 F.3d
485, 489-91 (7th Cir. 2021) (vacating a district court's denial of compassionate release and
holding that "the district court should have assessed [the defendant's] situation not only in light of
each of his comorbidities individually but also cumulatively").
Of White Horse's medical conditions, hyperlension is associated with greater
complications from a COVID-19 infection. United States v. Contreras, 504 F. Supp. 3d 1052,
1059 (D.S.D. 2020); COVID-19 - Medical ConditSom, CTR. FOR DISEASE CONTROL AND
PREVENTION (updated May 2, 2022), https://wvvw.cdc.gov/coronavirus/2019-ncov/need-extra-
8
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precautions/people-with-medical-conditions.html. kt[T]he relationship between hypertension and
elevated risk from COVID-19 is not fully understood. Some experts say that high blood pressure
alone is not a risk factor, but that it may be a risk factor when combined with another underlying
health condition. . . . Other experts believe thai CO VID-19 slrains the heart, making people
with hypertension more vulnerable to the disease." Id. at 1059-60 (cleaned up and citations
omitted). Older adults are also at greater risk of death or complications from COVID-19.
Contreras, 504 F. Supp. 3d at 1059.
Here, evidence of White Horse's heightened vulnerability to the COVID-19 virus due to
his age and hypertension are not sufficient grounds to grant compassionate release—especially
considering that White Horse has been vaccinated against the virus, White Horse can obtain a
vaccine booster shot, the BOP's efforts to curtail the spread of the virus, and that there are no
recently confirmed cases in the federal detention center where White Horse is housed. See United
States v. Thomas, 471 F. Supp. 3d 745, 748-50 (W.D. Va. 2020) (stating courts have granted
compassionate release to incarcerated persons with hypertension "only when these individuals also
suffered from other" serious underlying medical conditions).
Neither are White's Horse's current and chronic medical conditions—glaucoma,
hypertension, arthritis, and back pain—grounds for compassionate release. Many of these
conditions are common and associated with aging, and White Horse is receiving medical care for
these conditions while incarcerated. See United States v. Weidcnhamer, No. CR-16-01072-001-
PHX-ROS, 2019 WL 6050264, at *5 (D. Ariz. Nov. 8, 2019) ("Chronic conditions that can be
managed in prison are not a sufficient basis for compassionate release."); United Slates v. Dana,
467 F. Supp. 3d 962, 968 (D. Or. 2020) (same); United States v. Ayon-Nunez, No. 1:1 6-CR-00130-
DAD, 2020 WL 704785, at *3 (E.D. Cal. Feb. 12, 2020) (same).
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IV. Conclusion and Order
For the reasons discussed, it is hereby
ORDERED that White Horse's motion for compassionate release under the First Step
Act, Doc. 245, is denied without prejudice to refiling if White Horse's health conditions worsen.
DATED this /^ day of June, 2022.
BY THE COURT:
ROBERTO A. LANGI
CHIEF JUDGE
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