USA v. Chasing Hawk

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA, 3:19-CR-30003-RAL
Plaintiff,
vs.
JOCELYN CHASING HAWK,
OPINION AND ORDER DENYING
MOTION FOR COMPASSIONATE
RELEASE
Defendant.
Defendant Jocelyn Chasing Hawk filed a pro se motion for compassionate release. Doc.
107. Pursuant to the procedure established by Amended Standing Order 20-06, the United States
Attorney and the Federal Public Defender for the Districts of North and South Dakota categorized
her motion as Low Priority, Doc. 108, and the Federal Public Defender for the Districts of North
and South Dakota chose not to supplement Chasing Hawk's motion. The Government opposes
the motion. Doc. 114. For the following reasons, this Court denies Chasing Hawk's motion for
compassionate release without prejudice to refiling another motion after she has served a greater
portion of her sentence and has developed a more concrete release plan for providing daily
emotional support and stability for her daughters.
I. Factual Background
On June 4, 2020, Chasing Hawk pled guilty to one count of Conspiracy to Distribute a
Controlled Substance in violation of21 U.S.C. §§ 846, 841(b)(1)(A), and 841(a)(1). Doc. 88 at 1.
On August 17, 2020, the undersigned judge sentenced Chasing Hawk to 120 months
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imprisonment, followed by five years of supervised release, and to pay a $1,000 fine and $100
speeial assessment. Does. 100-01. Chasing Hawk petitioned her warden for an earlier release and
was denied. Doc. 107-1 at 12, 14-16.
Chasing Hawk's conviction stemmed from years of conduct involving the possession and
distribution of methamphetamine. Doe. 92 at	|	6. Chasing Hawk admitted to distributing more
than 500, but less than 1,500, grams of methamphetamine on the Cheyenne River Sioux Indian
Reservation and in Rapid City, South Dakota. Id Law enforcement interviews indicate that
Chasing Hawk knowingly and intentionally, combined, conspired, confederated, and agreed with
persons to knowingly and intentionally distribute or possess with the intent to distribute
methamphetamine. Id at 6, 8-12. Further, the interviews also indicate that Chasing Hawk
likely distributed over 1,500 grams of methamphetamine. Id at ]fTf 8-12, 14.
Under the sentencing guidelines. Chasing Hawk's total offense level for conspiracy to
distribute a controlled substance was 27, and she fell into criminal history category IV due to past
convictions for larceny, grand theft, and drug possession. Id at 31^4, 66. Chasing Hawk's
advisory guideline range was 100 months to 125 months; however, because Chasing Hawk faced
a mandatory minimum sentence of 120 months, the guideline range became 120 months to 125
months. Id at ^ 66. This Court sentenced Chasing Hawk to the lowest sentence it could—^the
mandatory minimum 120 months imprisonment. Id; Docs. 100-01.
Chasing Hawk is currently incarcerated at the Waseca Federal Correctional Institution in
Waseca, Minnesota. Inmate Locator. Fed. Bureau Prisons, https://www.bop.gov/inmateloe/(last
visited Jan. 3, 2023)(Register Number: 12037-273). Chasing Hawk is projected to be released
October 12, 2027. Id Currently, Chasing Hawk is 41 years old. Id
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In early 2020, a novel coronavirus, COVlD-19, quickly spread across the United States
and infiltrated correctional institutions. The Centers for Disease Control and Prevention(CDC)
has identified certain underlying health conditions that put individuals at higher risk for a severe
form of the illness if they contract the disease. Among those at higher risk are individuals with
cancer, tuberculosis, obesity, serious heart conditions, sickle cell disease. Type 2 diabetes, as well
as several other conditions. See People with Certain Medical Conditions. Ctrs. for Disease Control
& Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-
medical-conditions.html (last updated Dec. 6, 2022).
Chasing Hawk filed a motion for compassionate release based on her family circumstances,
specifically her older daughter's cancer diagnosis and her younger daughter's mental health crisis.'
Doc. 107 at 1-2. Chasing Hawk claims she is unable to get services at the Waseca facility due to
the ongoing COVlD-19 pandemic, either for psychological treatment relating to grief or other
educational services. Id at 2. Chasing Hawk also argues that she is at risk for a more serious form
of COVlD-19 due to her medical conditions, listing her latent tuberculosis and being overweight.
Id. Chasing Hawk hopes to live with and care for her older daughter as she goes through cancer
treatments if she is released early. Chasing Hawk also mentions that she has services in Rapid
City she wishes to take advantage of, but does not provide details about a possible release plan.
Id. Because she was convicted ofa federal methamphetamine conspiracy charge. Chasing Hawk's
tribe,the Cheyenne River Sioux Tribe, has banished her from the Reservation preventing her from
returning to her home of Eagle Butte.
'This Court chooses not to use the names of Chasing Hawk's daughters in this opinion and order
to protect their identities and confidential personal information. The younger daughter did not file
anything in support of Chasing Hawk's motion, which makes this Court reluctant to identify her
by name when discussing information in the record about her.
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II. Discussion
In general, federal sentenees are eonsidered final judgments because a federal court
ordinarily "may not modify a term of imprisonment once it has been imposed." 18 U.S.C.A. §
3582(c); United States v. Hodgin. No. 4:15-CR-40110-02-KES, 2021 WL 928179, at *1 (D.S.D.
Mar. 11, 2021). However, in 2018, Congress passed the First Step Act(FSA), Pub. L. No. 115-
391, 132 Stat. 5194 (2018), which amended 18 U.S.C. § 3582(c)(1)(A) to permit incarcerated
defendants to file motions directly with the court seeking compassionate release once they have
exhausted administrative remedies. United States v. Rodd. 966 F.3d 740, 744 (8th Cir. 2020).
"The inmate also may go directly to the court ifthe warden ofthe inmate's facility does not respond
to the inmate's compassionate-release request within 30 days." Id "Compassionate release
provides a narrow path for defendants with 'extraordinary and compelling reasons' to leave prison
early." Hodein. 2021 WL 928179, at *1 (citing 18 U.S.C. § 3582(c)(l)(A)(i)). "It is the
defendant's burden to establish that [s]he warrants a [18 U.S.C.] § 3582(c) reduction." United
States V. Jones. 836 F.3d 896, 899(8th Cir. 2016).
When evaluating a compassionate release petition, courts consider the sentencing factors
in 18 U.S.C. § 3553(a) and must ensure any potential reduction is consistent with the policy
statements issued by the Sentencing Commission. 18 U.S.C. § 3582(e)(1)(A);^Hodgin. 2021
WL 928179, at *1. In addition to the advisory guideline range, a court imder 18 U.S.C. § 3553(a)
must consider:
(1) the nature and circumstances of the offense and the history and
characteristics ofthe 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;
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(B)to afford adequate deterrence to criminal conduct;
(C)to protect the public from further crimes ofthe 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 ofsentences available[.]
Chasing Hawk's effective advisory guideline range was 120 to 125 months based on a total
offense level of 27, a criminal history category of IV, and the mandatory minimum ten-year
sentence. Doc.92 atf 66. This Court sentenced Chasing Hawk to 120 months,the shortest length
of sentence she could receive. Doc. 101. Chasing Hawk's offense was serious. Chasing Hawk
distributed methamphetamine on the Cheyeime River Indian Reservation and in Rapid City, South
Dakota for years and was likely responsible for distributing over 1,500 grams of methamphetamine
in those communities, though by the terms of the plea agreement she was treated as distributing
less than that amount. Doc.92 at m 6-14. Chasing Hawk has a serious criminal history reflecting
drug involvement and thefts while in her thirties. Id at 31-44. The sentence imposed is long
but reflected the seriousness of the offense, promoted respect for the law, provided just
punishment, deterred the conduct, and protected the public.
The Sentencing Commission's policy statement, which was adopted before the FSA was
passed, demands "extraordinary and compelling reasons" to warrant a sentence reduction, as well
as requiring that the defendant not pose a danger to the safety ofothers. Hodgin.2021 WL 928179,
at *2(citing USSG § lB1.13(l)-(2)(Nov. 2018)). Yet Congress has not defined what constitutes
"extraordinary and compelling reasons." See 28 U.S.C. § 994(t). "The Sentencing Commission
was directed to describe what should be considered extraordinary and compelling reasons and
fashion 'the criteria to be applied and a list of specific examples.'" Hodgin. 2021 WL 928179, at
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*2 (quoting 28 U.S.C. § 994(t)). The Sentencing Commission characterized "extraordinary and
compelling reasons" as pertaining to(1)the medical condition ofthe defendant,(2)time served in
combination with advanced age and deteriorating health conditions, (3) compelling family
circumstances, and(4)a catch-all category of"extraordinary and compelling reason[s] other than,
or in combination with, the reasons described" previously as determined by the Director of the
Bureau of Prisons (BOP). USSG § 1B1.13, cmt n.l(A)-(D). Extraordinary and compelling
reasons are further defined within each subset. Id For example, a medical condition must affect
the ability of the defendant to care for themself within the correctional facility or be a terminal
illness. USSG§ 1B1.13,cmt. n.l(A). Similarly, compelling family circumstances can mean "[t]he
death or incapacitation of the caregiver ofthe defendant's minor child or minor children." USSG
§ lB1.13,cmt. n.l(C)(i).
Chasing Hawk exhausted her administrative remedies when she petitioned her warden for
an earlier release and was denied over 30 days ago. Doc. 107-1 at 12, 14-16. Chasing Hawk has
only served a little under half of her 120-month sentence.^ Chasing Hawk alleges several reasons
for extraordinary and compelling circumstances, but does not fall into any category on the list
provided by the Sentencing Commission. First, Chasing Hawk is not suffering from a terminal
illness or a serious condition that affects her ability to care for herself within the prison. S^ USSG
§ 1B1.13, cmt. n.l(A)(i). Next, Chasing Hawk is only 41 years old, so her age is not a compelling
factor. See USSG § IB 1.13, cmt. n.l(B). Third, Chasing Hawk's children are no longer minors,
with her older daughter being at least 20 and her younger daughter being at least 18. S^ USSG §
^ Chasing Hawk's arrest warrant was executed on January 28, 2019. Doc. 92 at	|	5. Chasing
Hawk remained in custody throughout her Court proceedings. Id The total amount of time
Chasing Hawk has been incarcerated is just over four years.
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IB 1.13, cmt. n.l(C)(i); Doc. 92 at ^ 49 (listing the daughters ages as 18 and 16 in 2020). Thus,
Chasing Hawk's petition, to justify granting, must fall under the final cateh-all provision.
Chasing Hawk cites how COVID has affeeted the prison, not only in terms ofprogramming
but also because her medical conditions put her at risk. "[T]he mere existence of COVID-19 in
soeiety 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 efforts to curtail the virus's spread." United States v. Saenz. 2020 WL 4347273, at
*5 (D.S.D. July 29, 2020)(cleaned up and citations omitted). Chasing Hawk does have latent
tuberculosis, and tuberculosis is a condition that puts one at risk for a more serious form of
COVID-19 if infected. People with Certain Medical Conditions, supra. However, latent
tuberculosis and active tuberculosis are not the same thing; those with latent tubereulosis have no
symptoms, do not feel sick, and cannot spread tuberculosis, but, if their latent tuberculosis is not
treated, can develop tuberculosis. Latent TB Infection and TB Disease, Ctrs. for Disease Control
& Prevention, https://www.cdc.gov/tb/topic/basics/tbinfeetiondisease.htm (last updated Dee. 11,
2020). Chasing Hawk's medical records indicate that her latent tuberculosis has been treated by
Indian Health Services and, that she has refused follow up treatment from BOP. Doc. 113 at 10,
45, 129. This Court caimot conclude that Chasing Hawk's latent tubereulosis threatens her life at
Waseca, especially given the precautions put in place by the BOP to protect her and her fellow
inmates. See COVID-19 Modified Operations Plan & Matrix. Fed. Bureau Prisons,
https://www.bop.gov/coronavirus/covidl9_modifled_operations_guide.jsp (last visited Feb. 1,
2023). Further, there are no active cases of COVID in Waseca at this time,and Chasing Hawk has
been vaccinated. COVID-19: Coronavirus. Fed. Bureau Prisons,
https://www.bop.gov/coronavirus/(last updated Jan. 19, 2023); Doc. 113 at 154, 156.
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Chasing Hawk's better argument for compassionate release relates to the struggles of her
daughters. Her older has been diagnosed with Hodgkins Lymphoma. Doc. 107-1 at 1, 11. The
cancer has caused her physical state to decline and, as that daughter explained in her letter, she
needs assistance with certain day-to-day tasks, such as bathing and ambulating. Id at 4-5. As of
May 2022, that daughter has been home, but does not indicate where "home" is, though possibly
in Eagle Butte where she lived prior to her hospitalization and where her grandmother lives. Id
at 4; Doc. 92 at 46, 49. It is unclear who has been helping this daughter currently; if released.
Chasing Hawk would not be able to return to Eagle Butte to help her daughter because the
Cheyerme River Sioux Tribe has banished from its reservation anyone convicted of a federal
methamphetamine offense. Doc. 92 at Tf 50 (discussing the possibility that Chasing Hawk be
banished from the Cheyenne River Reservation, where Eagle Butte is located); Doc. 107 at 1
(discussing how Chasing Hawk's mother has opened her home to that daughter but cannot care for
her due to her own medical conditions).
Chasing Hawk's younger daughter has mental health and substance abuse issues, recently
having attempted suicide and being hospitalized due to her attempt. Doc. 107 at 1; 107-1 at 4.
This younger daughter "got into drugs," and her grandmother apparently is not able to provide the
stable household needed. Doc. 107-1 at 4. The younger daughter also lives in Eagle Butte with
her grandmother, so if Chasing Hawk were released, her banishment would prevent her from
joining either daughter in Eagle Butte. Doc. 92 at 46, 49-50. From what Chasing Hawk
submitted, her plan would appear to involve living in Rapid City, South Dakota, although it is
unclear where, whether both daughters would move, and whether Chasing Hawk could provide a
more stable home.
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Guidance from the BOP, as it relates to U.S.S.G. IB 1.13 cmt. n.l(C)(i), instructs that the
best interests of the child be considered by examining the inmate's history with her children and
behavior before and during custody. BOP Program Statement 5050.50 at 8-9 (Jan. 17, 2019),
https://perma.cc/98YN-KRQX. Though Chasing Hawk's daughters are young adults and no
longer children, it is helpful to consider these factors:
- Has the inmate committed violent acts before or during the period ofincarceration
as reflected in the PSR, institutional disciplinary records, or other appropriate
documentation?
- Did the inmate have drugs, drug paraphernalia, firearms, or other dangerous
substances in the home while caring for the child prior to incarceration?
- To what degree has the inmate had contact with or cared for the child prior to
arrest, pretrial or pre-sentence, and during incarceration? Staff should review
institution records for evidence ofcontact(telephone, mail,email, visiting log, etc.).
- Is there any evidence of child abuse, neglect, or exploitation in the PSR or other
documents?
- Are there any documents regarding the inmate's parenting skills or obligations
(e.g., child support orders, restraining orders for physical or emotional abuse of
spouse, registered partner or children, certificates for classes in anger management
or other types of counseling, removal of child from the home for any reasons)?
- Are there records regarding the termination of parental rights or loss of custody
ofthe inmate's (other) child? ...
- Has the inmate engaged in programming (e.g., parenting, anger management)
during incarceration that would indicate efforts to improve parenting skills or that
would indicate a commitment to caring for the child upon release?
Id
Chasing Hawk has had one disciplinary incident during this most recent term of
incarceration for assaulting an inmate without serious injury. Doc. 113 at 164. Next, while the
PSR shows mostly theft and drug related offenses. Chasing Hawk has been arrested for incidents
of violence, though those charges ended up being dismissed. Doc. 92 at 2,44. Chasing Hawk
has a history with substance abuse, as reflected by her criminal history. Id at 31-44. In the
year prior to her arrest, while both her daughters were still minors. Chasing Hawk by her own
admission was using methamphetamine daily. Id at ^ 55. The PSR makes no note of abuse or
neglect to Chasing Hawk's daughters. Instead, the PSR notes that Chasing Hawk had a good
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relationship with her children. li at T| 49. Chasing Hawk,to her credit, has worked to improve
herself while incarcerated. Doc. 113 at 165. Chasing Hawk has completed programing and has
attempted to enroll in additional classes. Doc. 107-1 at 6-9, 13. Further, Chasing Hawk has
received positive performance evaluations from her work at UNICOR, reflecting that her
performance is improving. Id at 19-21.
Chasing Hawk's efforts toward rehabilitation and her love and concern for her daughters,
though admirable and understandable, do not quite satisfy "extraordinary and compelling"
circumstances to justify FSA relief given the absence of a concrete release plan or better
information about where Chasing Hawk and her daughters might reunite and whether that would
in fact improve her daughters' lives. While this Court sympathizes with Chasing Hawk,the PSR
lists several other family members who presumably could help care for Chasing Hawk's daughters.
Doc.92 at 146. Chasing Hawk's ovra long struggle with substance abuse and mental health issues
give her insight into her younger daughter's issues but suggest that Chasing Hawk might herself
struggle with sobriety and personal responsibility upon release. Moreover, Chasing Hawk has
served less than half of her 120-month sentence, only having completed 48 months of custody.
Further, there are many things left uncertain if Chasing Hawk would be released, namely where
she would go, given she is banished from her reservation where presumably both her daughters
live. Thus, this Court cannot conclude that Chasing Hawk's circumstances satisfy the high
standard for relief under the FSA. If something changes and Chasing Hawk is able to provide a
more solid plan for where she would go and what she would do after her release, she may file
another motion for compassionate release. If she does so, the Federal Public Defender for the
Districts of North and South Dakota should supplement the motion and assist Chasing Hawk in
addressing the matters that prompted this Court to deny her motion.
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III. Conclusion
For the reasons discussed above, it is hereby
ORDERED that Chasing Hawk's Motion for Compassionate Release, Doc. 107, is denied.
DATED this day of February, 2023.
BY THE COURT:
ROBERTO A. LANGI
CHIEF JUDGE
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