USA v. Eagle Bear et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA, 3:22-CR-30007-RAL
Plaintiff,
OPINION AND ORDER DENYING
vs. MOTION FOR COMPASSIONATE
RELEASE
CLEO KILLS IN WATER,
Defendant.
Defendant Cleo Kills in Water filed a pro se motion for compassionate release. Doc. 108.
Pursuant to the procedure established by Amended Standing Order 20-06, the United States
Attorney and the Federal Public Defender for the Districts ofNorth and South Dakota categorized
her motion as Low Priority, Doc. 110, and the Federal Public Defender chose not to supplement
Kills in Water's motion. The Government opposes the motion. Doc. 111. For the following
reasons, this Court denies Kills in Water's motion for compassionate release.
I. Factual Background
On May 26, 2022, Kills in Water pled guilty to one count of Assault with a Dangerous
Weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3). Doc. 88 at 1. On August 15, 2022, the
undersigned judge sentenced Kills in Water to twelve months and one day imprisonment,followed
by two years of supervised release, and to pay $100 special assessment. Docs. 105,107. Kills in
Water submitted a request for compassionate release to the warden of the institution where she
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was incarcerated on August 26, 2022, but did not receive a response before she submitted her
motion on September 2, 2022. Doc. 108 at 3.
Kills in Water's conviction was the result of assaulting another with a hatchet the evening
of December 6, 2021. Doc. 99 at K 5. The evening of the offense, Kills in Water and her co-
defendant were driving in and around Norris, South Dakota, with two other individuals, Mr.
Broken Rope and Ms. Bettelyoun, when her co-defendant began to assault Mr. Broken Rope in
their vehicle with a hatchet. Id The group then went to the camper used as the co-defendant's
\
home where Kills in Water then used the hatchet to assault Ms. Bettelyoun in an attempt to "play
along" to keep her co-defendant from assaulting her. Id Ms. Bettelyoun's interview indicated
that Kills in Water choked her, struck her with the hatchet, threatened to bum her vehicle and
house down with her children inside, prevented her and Mr.Broken Rope from exiting the camper,
and tortured Mr. Broken Rope along with the co-defendant. Id. at ^ 7.
Under the sentencing guidelines, Kills in Water's total offense level for assault with a
dangerous weapon was 20 and fell into criminal history category I. Id at T[ 64. The base level of
the offense was 14, but the specific offense characteristics, including the use of a dangerous
weapon, bodily injury inflicted on the victim, restraint of the victim, and Kills in Water's
acceptance of responsibility, led to a net increase of six points to reach the final offense level of
20. Id at 15-26. As a result, Kills in Water's advisory guideline range was 33 months to 41
months. Id at 164. This Court varied downward to impose a sentence that was less than half of
the low end ofKills in Water's guideline range due to the circumstances ofthe crime that indicated
duress and her health conditions.
Kills in Water is currently incarcerated at the Carswell Federal Medical Center(Carswell)
in Fort Worth,Texas. Inmate Locator. Fed. Bureau Prisons, https://www.bop.gov/inmateloc/(last
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visited Jan. 26, 2023)(Register Number: 83114-509). However, at the time Kills in Water made
her motion she was incarcerated at the Winner City Jail in Winner, South Dakota. Doc. 107 at 6;
Doc. Ill at 1. Kills in Water is projected to be released in just under two months, on March 23,
2023. Id. Currently, Kills in Water is 40 years old. Id.
In early 2020, a novel coronavirus, COVID-19, quickly spread across the United States
and infiltrated correctional institutions. The Centers for Disease Control and Prevention(CDC)
has identified certain imderlying 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, chronic kidney disease, obesity, serious heart conditions, sickle cell disease, diabetes, as
well as several other conditions. People with Certain Medical Conditions. Ctrs. for Disease
Control & Prevention, https://wvvw.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html (last updated Jan. 26,2023).
Kills in Water filed a motion for compassionate release based on her health conditions,
which make her more vulnerable to COVID-19. Doc. 107 at 4—5. Her health conditions include
lupus, epileptic seizures, chronic asthma with bronchial spasms,renal failure, and Type I diabetes.
Doc. 99 at H 53; Doc. 107 at 5,20. For her conditions Kills in Water takes a variety of medication
multiple times a day and requires the use of a walker. Doc. 107 at 10, 21. If released. Kills in
Water intends to live with her grandmother in Rapid City, South Dakota. Id. at 8.
11. Discussion
In general, federal sentences are considered final judgments because a federal court
ordinarily "may not modify a term of imprisonment once it has been imposed." 18 U.S.C.A. §
3582/0'): 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-
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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).
Fully exhausting remedies is required before the motion can be filed. United States v. Houck. 2
F.4th 1082,1083 (8th Cir. 2021). "Exhaustion occurs at the earlier of either(1) when the prisoner
has fully exhausted all administrative rights to appeal a failure of the Bureau ofPrisons to bring a
motion on his behalf or(2) the lapse of 30 days from the receipt of such a request by the warden
of the prisoner's facility." Id at 1083-84 (cleaned up and citation omitted). Kills in Water
submitted her request for compassionate release to the warden on August 26, 2022. Doc. 108 at
3. However,Kills in Water filed her motion with this Court on September 2,2022. Thus, Kills in
Water failed to wait 30 days after submitting her request, instead waiting only seven. There is no
record to show that Kills in Water used any of her administrative rights to appeal a failure of the
Bureau ofPrisons. Kills in Water did not fully exhaust, and her motion for compassionate release
must be denied. However, even if Kills in Water had exhausted, her circumstances still do not
warrant a sentence variation given the sentencing factors.
"Compassionate release provides a narrow path for defendants with 'extraordinary and
compelling reasons' to leave prison early." Hodgim 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(c)(1)(A); Hodgin. 2021 WL 928179, at *1. In
addition to the advisory guideline range, a court under 18 U.S.C. § 3553(a) must consider:
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(1) the nature and circumstances of the offense and the history aiid
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;
(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[.]
Kills in Water's advisory guideline range was 33 months to 41 months based on a total
offense level of 20 and a criminal history category of I. Doc. 99 at ^ 64. This Court sentenced
Kills in Water to 12 months and 1 day, less than half of the lowest end of the guideline range.
Docs. 105, 107. Kills in Water's offense was serious. Kills in Water assaulted another with a
hatchet and falsely imprisoned the victims in a camper where her co-defendant continually
assaulted one victim in front of the other. Doc. 99 at 5, 7. However, Kills in Water had a
limited criminal history, showing only traffic offenses, but also arrests for stalking, aggravated
assault, and kidnapping, which were later dismissed, and three Temporary Orders for Protection
entered against her. Id. at 31-43. Further, there was some evidence that Kills in Water's
participation in the assault was coerced. Finally, at the time of sentencing. Kills in Water's health
had been declining. The sentence 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
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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." 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
*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,
I
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).
There is no doubt that Kills in Water has serious medical conditions. However, none of
her medical conditions are terminal, all are manageable with proper care, and none prevent her
from taking care of herself in prison, therefore Kills in Water lacks grounds for relief under
comment note 1(A). See USSG § 1B1.13, cmt. n.l(A). Because Kills in Water is only 40 her age
is not a compelling factor, so she lacks grounds for relief under comment note 1(B). S^ USSG §
1B1.13, cmt. n.1(B). Further,she alleges no cause for release relating to her family circumstances,
thus Kills in Water lacks grounds for relief under comment note 1(C). Soe USSG § 1B1.13, cmt.
n.l(C). Therefore, Kills in Water's petition, to justify granting, must fall under the final catch-all
provision.
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The COVID-19 pandemic is ongoing and Kills in Water does have risk factors associated
with contracting COVID-19. Specifically, her asthma, diabetes, renal disease, and obesity are all
conditions that make her more likely to get very sick from COVID-19. People with Certain
Medical Conditions, supra. Carswell currently has one active case of COVID-19 among their
inmate population and five cases among their staff, which is not surprising for a medical center.
COVID-19: Coronavirus. Fed. Bureau Prisons, https://www.bop.gov/coronavirus/ (last updated
Jan. 26,2023)(COVID-19 Cases, Full breakdown and additional details...). Regardless, Carswell
remains a level 1 facility, with only minimal modifications required due to the pandemic. FMC
Carswell. Fed. Bureau Prisons, https://www.bop.gov/locations/institutions/crw/ (last visited Jan.
26, 2023).
The fact remains that Kills in Water was given a relatively short sentence because of the
coercion from her co-defendant and her declining health. Thus, the sentenced imposed already
considered the factors Kills in Water now argues warrants a reduction and support the original
sentence this Court imposed. See United States v. Crow Eagle.No.3:ll-cr-30014-RAL.Doc. 153
at 10-11 (D.S.D. Mar. 17, 2022); see also United States v. Jones. No. 16-516 (KM), 2022 WL
341201, at *7 (D.N.J. Feb. 4, 2022) (denying a motion for compassionate release when the
sentence imposed was designed with the petitioners physical condition in mind and the petitioner's
physical condition did not outweigh "the need to maintain a sentence that reflects the seriousness
of the offense and the need for pimishment and deterrence"). As such, there are no extraordinary
and compelling reasons to grant Kills in Water's release.
III. Conclusion
For the reasons discussed above, it is hereby
ORDERED that Kills in Water's Motion for Compassionate Release, Doc. 108, is denied.
7
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DATED this day of January, 2023.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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