USA v. Rouillard

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
NORMAN ROUILLARD,
Defendant.
5:07-CR-50066-01-KES
ORDER DENYING MOTION FOR
RELIEF UNDER THE
FIRST STEP ACT
Defendant, Norman Rouillard, filed a motion for compassionate release
under 18 U.S.C. § 3582(c)(1)(A)(i) and requests appointment of counsel. Docket
33; Docket 34. Plaintiff, the United States of America, opposes the motion.
Docket 38. For the following reasons, the defendant’s motion for compassionate
release is denied and his request for counsel is denied as moot.
BACKGROUND
On July 2, 2007, Rouillard pled guilty to carjacking in violation of
18 U.S.C. § 2119(a)(1). Docket 22; Docket 24 at 1. On August 27, 2007, the court
sentenced Rouillard to 260 months in custody followed by five years of supervised
release. Docket 30 at 2-3. His projected date of release is April 19, 2027. See Find
an inmate., Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited
Mar. 3, 2022).
Rouillard is incarcerated at USP Florence ADMAX, an administrative security
U.S. penitentiary in Florence, Colorado. See id.; USP Florence ADMAX, Fed. Bureau
of Prisons, https://www.bop.gov/locations/institutions/flm/ (last visited Mar. 3,
2022). The total population at USP Florence ADMAX is 343 persons. Id.
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In support of his motion, Rouillard cites the current COVID-19 pandemic,
his mental health disorder, and his rehabilitation efforts as circumstances that
warrant release from custody under the First Step Act. Docket 33; Docket 37 at
1319. Rouillard submitted an Inmate Request to Staff form requesting
compassionate release on November 18, 2021. Docket 37 at 1319. On December
3, 2021, the warden denied his request. Id. at 1317-1318; Docket 33-1 at 1-2.
Consequently, Rouillard filed a pro se motion seeking compassionate release
under the First Step Act. Docket 33.
DISCUSSION
Because 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). In 2018, Congress passed the First Step Act (FSA). Pub. L. No. 115-
391, 132 Stat. 5194 (2018). In pertinent part, the FSA amends 18 U.S.C.
§ 3582(c)(1)(A) to permit incarcerated defendants in certain circumstances to
file motions with the court seeking compassionate release. Compassionate
release provides a narrow path for defendants with “extraordinary and
compelling reasons” to leave prison early. 18 U.S.C. § 3582(c)(1)(A)(i). Such a
reduction in sentence must take into consideration the 18 U.S.C. § 3553(a)
sentencing factors and be consistent with applicable policy statements issued
by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A).
The Sentencing Commission’s policy statement, which was adopted
before the FSA was passed, requires both “extraordinary and compelling
reasons” to warrant a sentence reduction and that the defendant not pose a
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danger to the safety of others.” USSG § 1B1.13(1)-(2) (Nov. 2018). The burden
to establish that a sentence reduction is warranted under 18 U.S.C. § 3582(c)
rests with the defendant. See United States v. Jones, 836 F.3d 896, 899 (8th
Cir. 2016).
Rouillard argues that the global COVID-19 pandemic, his mental health
disorder, his rehabilitation efforts, and the current conditions of USP Florence
ADMAX satisfy the “extraordinary and compelling reasons” standard under 18
U.S.C. § 3582(c)(1)(A)(i). Docket 33; Docket 37 at 1319.
I. 	Administrative Exhaustion
Previously, only the BOP Director had the authority to bring a compassionate
release motion on a defendant’s behalf. With the enactment of the FSA, however,
Congress has now permitted courts to grant compassionate release on motions filed
by defendants “after the defendant 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).
On November 18, 2021, Rouillard submitted an Inmate Request to Staff form
citing COVID-19, his mental health, and his rehabilitation efforts. Docket 37 at
1319. On December 3, 2021, the warden denied his application. Id. at 1137-1138;
Docket 33-1 at 1-2. Having presented his request to the warden and being denied,
and hearing no objection from the United States, the court will presume Rouillard
has satisfied the administrative exhaustion requirement and will review the matter
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on the merits.1
II. 	Extraordinary and Compelling Reasons
The Sentencing Commission was directed by Congress to describe what
“should be considered extraordinary and compelling reasons” for compassionate
release and fashion “the criteria to be applied and a list of specific examples.” See
28 U.S.C. § 994(t). The Sentencing Commission did so by limiting “extraordinary
and compelling reasons” to four categories. USSG § 1B1.13, cmt. n.1(A)-(C) (2018).
The four categories pertain to a defendant’s (1) terminal illness, (2) debilitating
physical or mental health condition, (3) advanced age and deteriorating health in
combination with the amount of time served, and (4) compelling family
circumstances. Id. A fifth catch-all category also exists for an “extraordinary and
compelling reason other than, or in combination with, the reasons described in
subdivisions (A) through (C)” as determined by the BOP. USSG § 1B1.13, cmt.
n.1(D).
The court has detailed the governing law and the analysis it uses when
confronted with a compassionate release motion in many previous orders. E.g.,
United States v. Shields, 3:07-CR-30106-01-KES, 2021 WL 765001, at *2-3 (D.S.D.
Feb. 26, 2021); United States v. Muhs, 4:19-CR-40023-02-KES, 2021 WL 534517, at
*2-3 (D.S.D. Feb. 12, 2021); United States v. Adame, 4:18-CR-40117-05-KES, 2020
WL 7212096, at *2-3 (D.S.D. Dec. 7, 2020); United States v. Nyuon, 4:12-CR-40017-
1 The warden’s response states that if Rouillard is not satisfied with the decision, he
may commence an appeal through the administrative remedy process within 20
days of the receipt of the response. Docket 33-1 at 1-2; Docket 37 at 1137-1138.
There is no indication that Rouillard appealed the decision administratively.
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01-KES, 2020 WL 7029873, at *2-3 (D.S.D. Nov. 30, 2020). The court has assumed
the policy statements still apply to compassionate release motions brought under
the FSA and utilizes USSG § 1B.13, Notes 1(A)-(D) to guide its analysis. See, e.g.,
Muhs, 2021 WL 534517, at *3.
Rouillard contends that the current COVID-19 pandemic, his mental health
disorder, and his rehabilitation efforts satisfy the “extraordinary and compelling
reasons” standard under 18 U.S.C. § 3582(c)(1)(A)(i). Docket 37 at 1319. Therefore,
the court will analyze his circumstances under the medical conditions category,
USSG § 1B1.13 Note 1(A), the family circumstances category, USSG § 1B1.13 Note
1(B), and the catch-all provision, USSG § 1B1.13 Note 1(D).
Assuming the court’s discretion to consider compassionate release is at least
as broad as the outdated policy statement of the Sentencing Commission, Rouillard
has failed to show that his reasons for release rise to the level of “extraordinary and
compelling” circumstances justifying a reduction in sentence.
A. 	Medical Conditions Category, Note 1(A)
As relevant here, the medical conditions category applies when the defendant
is suffering from a serious physical or medical condition that substantially
diminishes his ability to provide self-care within a correctional facility and from
which he is not expected to recover. USSG § 1B1.13 cmt. n.1(A)(ii)(I).
COVID-19 appears to pose a particular risk for individuals with certain
existing health conditions. The Centers for Disease Control and Prevention (CDC)
updated its current understanding of these risks. See People with Certain Medical
Conditions, Ctrs. for Disease Control & Prevention (Feb. 25, 2022),
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https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-
medical-conditions.html. The CDC states individuals with the following conditions
are more likely to become very sick with COVID-19: cancer, chronic kidney disease,
chronic liver disease (such as alcohol-related liver disease, non-alcoholic fatty liver
disease, autoimmune hepatitis, and cirrhosis), chronic lung diseases (including
moderate to severe asthma, bronchiectasis, bronchopulmonary dysplasia, chronic
obstructive pulmonary disease (COPD), emphysema, chronic bronchitis, interstitial
lung disease, idiopathy pulmonary fibrosis, pulmonary embolism, and pulmonary
hypertension), cystic fibrosis, dementia or other neurological conditions, diabetes
(type 1 or type 2), having certain disabilities (such as ADHD, cerebral palsy, birth
defects, intellectual and developmental disabilities, learning disabilities, spinal cord
injuries, or Down syndrome), heart conditions (such as heart failure, coronary
artery disease, cardiomyopathies, or hypertension), HIV infection,
immunocompromised state (having chemotherapy or a solid organ transplant),
mental health conditions (having mood disorders, including depression, and
schizophrenia spectrum disorders), being overweight or obese, partaking in little or
no physical activity, pregnancy, sickle cell disease or thalassemia, being a current
or former smoker, having a solid organ or blood stem cell transplant, stroke or
cerebrovascular disease, substance abuse disorders (such as alcohol, opioid, or
cocaine use disorder), and tuberculosis. Id.
The court has reviewed the medical records submitted in this case. Rouillard
suffers from myopia, an unspecified disorder of refraction and accommodation,
antisocial personality disorder, migraines, astigmatism, and a teeth disorder.
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Docket 37 at 31. Additionally, he is prescribed bupropion2 and naproxen by his
physician and takes several over the counter medications. Id. at 38-40. Rouillard
takes naproxen to treat his headaches and bupropion to treat his antisocial
personality disorder. Id. at 955, 1000. His medical records show that Wellbutrin has
improved his mental health. Id. at 5, 766, 863, 872, 877, 887, 954, 959, 1006,
1024, 1097, 1110, 1168, 1172. At his latest appointment, on December 20, 2021,
Rouillard stated he felt well and requested to his dose of Wellbutrin. Id. at 1. His
other medical conditions have been categorized as resolved or in remission, which
leads the court to believe that Rouillard is adequately healthy. Id. at 31-36.
The court has required a more particularized showing of a risk of serious
illness from COVID-19 when evaluating compassionate release motions. Rouillard’s
health conditions do not prevent him from providing self-care in a correctional
facility setting, and his medical conditions do not amount to extraordinary and
compelling circumstances.
Additionally, the COVID-19 pandemic alone is insufficient to warrant early
release. The BOP has made significant changes to correctional operations since the
pandemic started in early 2020. See COVID-19 Coronavirus, Fed. Bureau of Prisons,
https://www.bop.gov/coronavirus/ (last visited Mar. 3, 2022). These include
sanitary and safety measures, restrictions on movement, and visitation restrictions,
among others. Id. The BOP has also transferred many thousands of inmates to
home confinement. See id. Since March 26, 2020, 38,870 inmates have been placed
2 Although bupropion is listed in Rouillard’s medication summary, his physicians
use the term “Wellbutrin” when referring to his bupropion prescription. Docket 37
at 5, 38, 766, 863, 887.
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in home confinement. Id. These measures have led to a dramatic decrease in the
total BOP population, which in turn has increased opportunities for social
distancing and reduced the strain on BOP resources.
The court believes Rouillard’s medical conditions are appropriately managed
at USP Florence ADMAX, the facility is engaged in appropriate efforts to protect
inmates against the spread of COVID-19, and the facility would act to treat any
inmate who does contract COVID-19. The fact that USP Florence ADMAX had a
COVID-19 outbreak does not negate such conclusions. The data for USP Florence
ADMAX shows a COVID-19 outbreak that was ultimately contained. See BOP
Modified Operations, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/
(last visited Mar. 3, 2022). There were no deaths as a result, and 64 inmates have
recovered. Id. This persuades the court that USP Florence ADMAX has acted
appropriately to treat inmates who do contract COVID-19. The court believes the
facility will continue to appropriately treat inmates who do so.
The BOP’s vaccination program for staff and inmates is another protective
measure warranting consideration in this stage of the COVID-19 pandemic. The
BOP has implemented a COVID-19 vaccination plan to protect inmates and staff
and limit the transmission of COVID-19 within the facilities. See id. As of March 3,
2022, 302,260 doses have been administered systemwide. Id. At FCC Florence, 541
staff and 1,923 inmates were fully inoculated as of March 3, 2022. Id. Rouillard
received his first dose of the Moderna COVID-19 vaccine on March 10, 2021, and
his second dose on April 5, 2021. Docket 37 at 37. Rouillard achieved full
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vaccination status on April 19, 2021.3 See id.
In light of the above, the court finds Rouillard’s circumstances do not clear the
high bar necessary to warrant compassionate release for “extraordinary and
compelling reasons” under 18 U.S.C. § 3582(c)(1)(A)(i).
B. 	Catch-all Category, Note 1(D)
The catch-all category in Note 1(D) does not result in a different outcome. The
catch-all category allows for release if there are extraordinary and compelling
reasons other than, or in combination with, those identified in 1(A) through 1(C).
USSG § 1B1.13, cmt. n.1(D). Even after considering Rouillard’s sobriety, the court is
not convinced that “extraordinary and compelling reasons” exist to release him from
custody early.
III. 	Sentencing Factors of § 3553(a)
The 3553(a) sentencing factors further show that compassionate release is not
warranted. Rouillard pleaded guilty to carjacking in violation of 18 U.S.C. § 2119.
Rouillard was released from state custody on April 28, 2007 and accompanied his
cousin to a party. PSR ¶ 10. Shortly upon arriving at his cousin’s residence,
Rouillard attempted to rape his cousin. Id. ¶ 11. When he failed, Rouillard grabbed
the keys to her vehicle and fled the scene. Id. The victim’s brother found her
injured with cuts on her forehead, hands, forearm, and bruising and swelling on
her back and shoulders. Id. Meanwhile Rouillard’s stolen vehicle ran out of gas, so
3 The CDC states that, “If you get a COVID-19 vaccine that requires two shots, you
are considered fully vaccinated two weeks after your second shot.” See
Understanding How COVID-19 Vaccines Work, Ctrs. for Disease Control &
Prevention (Feb. 24, 2022), https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/different-vaccines/how-they-work.html.
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he pulled over on the side of the road. Id. ¶ 12. A woman eventually pulled over
and offered to jump his vehicle. Id. Upon accepting her help, Rouillard grabbed her
out of the vehicle and threw her into the backseat through the back driver’s side
door. Id. He assaulted her with what the victim believed was a glass bottle and he
attempted to rape her. Id. The victim was 90 years of age. Id. ¶¶ 12, 14.
After the assault, Rouillard stole the victim’s vehicle and headed to Eagle
Butte where law enforcement was made aware of Rouillard’s actions. Id. ¶ 13. A
pursuit unfolded with the defendant driving at a rate of over one hundred miles
per hour. Id. Rouillard managed to elude state law enforcement, but a tribal police
officer managed to locate Rouillard. Id. Later, a short foot pursuit ensued, and
Rouillard was finally apprehended. Id. The victim suffered permanent
disfigurement due to the wounds she received from the attack. Id. ¶ 14.
The total offense level was calculated as 34 and Rouillard was in criminal
history category V. Id. ¶¶ 32, 40-42. As a result, the guideline range was 235 to
293 months in custody. Id. at ¶ 64. The court sentenced Rouillard within his
guideline range to 260 months in custody. Docket 30 at 2. After careful
consideration, the court concludes Rouillard’s sentence of 260 months continues
to be appropriate for the seriousness of the crime to which he pleaded guilty.
III. 	Appointment of Counsel
Rouillard also moved for appointment of counsel. Docket 34. Under the
court’s Amended Standing Order 20-06, the Federal Public Defender’s (FPD) Office
was appointed to represent Rouillard. After a review of his motion, the FPD
determined that it would not supplement Rouillard’s initial filing. Thus, the motion
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for appointment of counsel is denied as moot.
CONCLUSION
Rouillard has failed to satisfy the extraordinary and compelling
reason standard.
Thus, it is ORDERED:
1. That the defendant’s motion for compassionate release under the
First Step Act (Docket 33) is denied.
2. That Rouillard’s motion for appointment of counsel (Docket 34) is
denied as moot.
Dated March 4, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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