USA v. Tatum

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF
v. 	Case No. 1:09-cr-10014
AUDREY LAVELL TATUM 	DEFENDANT
ORDER
Before the Court is Defendant Audrey Lavell Tatum’s Motion for to Reduce Sentence
Pursuant to Section 603 of the First Step Act of 2018 (“FSA”). ECF No. 93. The Government
has responded. ECF No. 99. The Court finds the matter ripe for consideration.
BACKGROUND
On November 4, 2009, Defendant was indicted on two counts of distributing cocaine base.
ECF No. 1. A Superseding Indictment later added one count of conspiracy to distribute cocaine
base. 	ECF No. 31. 	Tatum agreed to plead guilty to Count Two of the superseding indictment,
charging him with distributing 50 grams or more of cocaine base. 	ECF No. 77. 	The final Pre-
Sentence Report (“PSR”) determined Defendant was a career offender and calculated a
recommended guideline sentencing range of 292-365 months. ECF No. 54, ¶¶ 31, 118. The Court
sentenced Defendant to 262 months imprisonment with 10 years of supervised release. ECF No.
55. On May 31, 2019, Defendant filed a motion to reduce his sentence pursuant to section 404 of
the FSA. ECF No. 80. The Court granted Defendant’s motion in part and reduced his sentence to
188 months imprisonment and 8 years of supervised release. ECF No. 89.
Defendant filed a motion to appoint counsel (ECF No. 89) in order to represent him for a
potential motion for compassionate release, which the Court granted. 	ECF No. 90. 	Defendant
subsequently filed the pending motion through the Federal Public Defender on December 16, 2020,
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and he seeks a reduction in sentence to time served. 	ECF No. 93. 	Defendant argues that the
combination of his health issues and the ongoing Covid-19 pandemic create extraordinary and
compelling circumstances that justify his release under the FSA. Specifically, he contends that his
hypertension and asthma put him at greater risk of adverse health impacts if he contracts Covid-
19 and that his confinement makes contraction more likely. Defendant also argues that the required
sentencing and public safety considerations favor his release. 	Defendant contends that the
pandemic creates a harsher sentence than initially anticipated when he was sentenced. 	Defendant
also highlights his work as an orderly and efforts towards getting his GED during his confinement
and notes that he has generally displayed good behavior while imprisoned. Defendant cites this
as evidence that his sentence has achieved its rehabilitation and deterrence purposes. Defendant
notes that his current conviction is for a non-violent offense and that he did not possess a firearm
while committing the offense. Defendant further notes that his inmate program review shows he
is not a danger to the community and states that he will have stability upon release because he will
live with his fiancé and is likely eligible for disability payments.
The Government responded in opposition to Defendant’s motion on January 13, 2021.
ECF No. 99. 	The Government initially contends that the circumstances of Defendant’s
confinement are not extraordinary and compelling to justify release. Specifically, the Government
argues that Defendant has already contracted and recovered from Covid-19 and that his first
infection was asymptomatic. The Government contends that this asymptomatic first infection and
the low probability of reinfection indicates the risk to Defendant is not as severe as he puts forth
in his motion for release. The Government also notes the multitude of precautions the Bureau of
Prisons (“BOP”) has taken to mitigate the spread of Covid-19 within its facilities.1 The
1 These measures include, but are not limited to, increased screening of inmates and staff, suspension of social visits,
operational modification to emphasize social distancing, and establishing quarantine areas. ECF No. 99, p. 13-15.
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Government also argues that the necessary sentencing and safety considerations weigh against
Defendant’s release. For the public safety considerations, the Government points to Defendant’s
status as a career offender for multiple drug distribution convictions. The Government contends
that this indicates a high risk of recidivism on the part of Defendant. The Government also notes
that Defendant has had some behavioral and contraband infractions during his current and prior
terms of incarceration. As for the sentencing considerations, the Government argues that allowing
Defendant out when he has served less than seventy-five percent of his already reduced sentence
would significantly undermine the deterrence effects of his sentence and the need for his sentence
to reflect the serious nature of his crimes.
DISCUSSION
Relief is available under the FSA if the Court finds: (1) that the requested sentence
reduction is warranted due to “extraordinary and compelling reasons;” (2) that the sentencing
factors set forth in 18 U.S.C. § 3553(a) support a reduction “to the extent that they are applicable;”
and (3) that a reduction would be consistent with any applicable policy statements issued by the
Sentencing Commission. 	18 U.S.C. § 3582(c)(1)(A). 	Before an analysis of those factors can
begin, the Court must determine if Defendant has exhausted all administrative remedies available.
18 U.S.C. § 3582(c)(1)(A).
A. Exhaustion of Administrative Remedies
The FSA provides two avenues for a defendant to bring a compassionate release motion to
a district court. 	The defendant may either file a motion once he “has fully exhausted all
administrative rights to appeal a failure of the [Bureau of Prisons] to bring the 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.” § 3582(c)(1)(A).
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Defendant bears the burden of showing that she exhausted her administrative rights with
the BOP before filing a compassionate-release motion. 	United States v. Davis, No. 2:15-CR-
20067-SHM, 2019 WL 6898676, at *1 (W.D. Tenn. Dec. 18, 2019).
The BOP has outlined the administrative exhaustion process in its Program Statement No.
5050.50. In short, a request for compassionate release must first be submitted to the warden of the
BOP facility in which the defendant is housed in. 28 C.F.R. § 571.61(a). If the warden approves
the request, it is sent to the BOP’s general counsel for approval. 28 C.F.R. § 571.62(A)(1). If the
general counsel approves the request, it is sent to the BOP’s director for a final decision. 28 C.F.R.
§ 571.62(A)(2). 	If the director approves, he or she will ask the United States Attorney in the
applicable judicial district to file a compassionate-release motion on BOP’s behalf. 28 C.F.R. §
571.62(A)(3).
If the warden does not respond to the request, the defendant’s administrative remedies are
deemed exhausted after thirty days. 	18 U.S.C. § 3582(c)(1)(A)(i). 	If the warden denies the
compassionate-release request, the defendant must appeal the decision pursuant to the BOP’s
Administrative Remedy Program. 28 C.F.R. § 571.63(a). If the request is denied by the BOP’s
general counsel or director, that decision is considered a final administrative decision and the
defendant’s administrative remedies are exhausted at that time. 28 C.F.R. § 571.63(b-c).
In this case, Defendant sent his request for release to the warden of his facility, who
subsequently denied the request on June 3, 2020. ECF No. 93-1, p. 1. On August 20, 2020, he
appealed the warden’s decision to the BOP regional director (ECF No. 93-1, p. 2.), but this appeal
was rejected. ECF No. 100-2, p.2. The Government states that it believes Defendant has exhausted
his administrative remedies and that this Court has jurisdiction to evaluate Defendant’s pending
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motion. ECF No. 99, p. 4-5. Accordingly, the Court finds that Defendant has taken the necessary
steps to exhaust his administrative remedies and will review his motion on the merits.
B. Extraordinary and Compelling Reasons
The Court finds that Defendant has failed to show that there are extraordinary and
compelling reasons justifying a reduction in his sentence and a release from confinement.
Pursuant to the FSA, the Court can grant Defendant’s request for a sentence reduction “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 [United States] Sentencing
Commission[.]” 18 U.S.C. § 3582(c)(1)(A)(i). 	Congress has not defined what constitutes
“extraordinary and compelling” reasons, although it did note that “[r]ehabilitation of the defendant
alone” is insufficient. 28 U.S.C. § 994(t). Instead, the Sentencing Commission was directed to
promulgate “the criteria to be applied and a list of specific” extraordinary and compelling
examples. 	Id. 	Thus, the Court looks to the Sentencing Commission’s policy statement in the
United States Sentencing Guidelines (“USSG”) as a starting point in determining what constitutes
“extraordinary and compelling reasons” under § 3582(c)(1)(A)(i). See id.
The relevant policy statement contemplates a reduction in the term of imprisonment if
“extraordinary and compelling reasons warrant the reduction.” 	USSG § 1B1.13(1)(A).2 	This
2 This policy statement predates the FSA and the Sentencing Commission has not since updated it or adopted a new
policy statement. This creates an issue because parts of the pre-FSA policy statement do not square neatly with the
language of the FSA. See U.S.S.G. § 1B1.13 (authorizing compassionate release only on the BOP’s motion). Thus, it
is unclear whether extraordinary and compelling reasons may be found only from the specific examples listed in the
pre-FSA policy statement or if courts can look beyond those examples. Courts have answered that question with
mixed results. See United States v. Brown, 411 F. Supp. 3d 446, 449-50 (S.D. Iowa 2019) (highlighting the debate
regarding the outdated policy statement). However, at minimum, the pre-FSA policy statement provides guidance as
to what constitutes extraordinary and compelling reasons. See U.S. v. Schmitt, 2020 WL 96904, at *3 (stating that
various courts agree that even though the policy statement has not been updated, it nevertheless provides helpful
guidance).
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policy statement limits “extraordinary and compelling reasons” to only include the following four
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 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, 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 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).
U.S.S.G. § 1B1.13 cmt. n.1.
Defendant argues that his health issues, specifically hypertension and asthma, combined
with the Covid-19 pandemic create “extraordinary and compelling” circumstances justifying his
release under either U.S.S.G. §§ 1B1.13, cmt. n.1(A)(ii) or n.1(D). ECF No. 93, p. 10. The Court
is not persuaded. As to § 1B1.13, cmt. n.1(A)(ii), the Court does not find that Defendant’s health
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issues alone are serious enough to be considered extraordinary and compelling circumstances.
These health conditions are currently managed with prescription medication and do not present a
serious risk to Defendant on their own. 	ECF No. 100-3, p. 4-5. 	For the § 1B1.13, cmt. n.1(D)
catch-all provision, Defendant’s health issues are certainly risk factors that give an individual an
elevated risk of serious adverse outcomes from contracting Covid-19. However, Defendant has
already contracted Covid-19, which was asymptomatic and resulted in a full recovery. Combined
with the low risk of reinfection, this significantly undermines the severity of the dangers the
pandemic presents to Defendant. The various measures taken by BOP to mitigate the spread of
Covid-19 also undermines the apparent risk of Defendant contracting Covid-19 a second time.
Accordingly, the Court does not find that the circumstances are extraordinary and compelling
under § 1B1.13, cmt. n.1(D) and do not warrant release under § 3582(c)(1)(A)(i).
C. § 3553(a) Sentencing Factors
Even if the Court found Defendant had presented an extraordinary and compelling reason
for compassionate release, it would still deny such release upon its evaluation of the factors under
18 U.S.C. § 3553(a). That statute provides:
(a) Factors To Be Considered in Imposing a Sentence. — The court shall impose a sentence
sufficient, but not greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection. The court, in determining the particular sentence to be
imposed, shall consider—
(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
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(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—
(A) the applicable category of offense committed by the applicable category
of defendant as set forth in the guidelines [issued by the Sentencing
Commission];
(5) any pertinent policy statement [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
Defendant argues that the pandemic creating a harsher sentence than initially anticipated,
his time already served, and his efforts toward rehabilitation support his release pursuant to the §
3553(a) sentencing factors. 	The Court is not persuaded. 	Regarding the pandemic creating a
harsher sentence, the Court determined above that the circumstances related to Defendant’s
medical issues and potential reinfection with Covid-19 are not as severe as Defendant contends.
As to the time Defendant has already served, it is less than seventy-five percent of his total
sentence. This significantly undermines Defendant’s argument that his sentence has achieved its
deterrence purpose under § 3553(a)(2)(B). Defendant qualified as a career offender for his latest
drug distribution conviction, and his sentence, already reduced once in 2019, was meant to reflect
his history and the serious nature of his crime. Releasing Defendant at this time would undermine
both 	§ 	3553(a)(1)’s 	requirement 	that 	a 	sentence 	consider 	Defendant’s 	history 	and 	§
3553(a)(2)(A)’s requirement that the sentence reflect the seriousness of the offense. 	The Court
notes Defendant’s efforts at obtaining his GED and his productive work as an orderly during his
confinement. However, those efforts do not outweigh the concerns that arise from analyzing his
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motion pursuant to § 3553(a)’s considerations. Accordingly, the Court finds that an evaluation of
the § 3553(a) sentencing factors does not support Defendant’s request for release.
D. Safety Considerations Under 18 U.S.C. § 3142(g)
The Court also finds that the necessary consideration of public safety prevents the Court
from granting Defendant’s request for release.
The requirement under 18 U.S.C. § 3582(c)(1)(A) that any reduction be consistent with
any applicable policy statements issued by the Sentencing Commission necessitates an evaluation
of the 18 U.S.C. § 3142(g) safety factors. See USSG § 1B1.13(2). The factors for consideration
under § 3142(g) are:
(g) Factors to be considered.-The judicial officer shall, in determining whether there are
conditions of release that will reasonably assure the appearance of the person as required
and the safety of any other person and the community, take into account the available
information concerning-
(1) the nature and circumstances of the offense charged, including whether the
offense is a crime of violence, a violation of section 1591, a Federal crime of
terrorism, or involves a minor victim or a controlled substance, firearm, explosive,
or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
(A) the person's character, physical and mental condition, family ties,
employment, financial resources, length of residence in the community,
community ties, past conduct, history relating to drug or alcohol abuse,
criminal history, and record concerning appearance at court proceedings;
and
(B) whether, at the time of the current offense or arrest, the person was on
probation, on parole, or on other release pending trial, sentencing, appeal,
or completion of sentence for an offense under Federal, State, or local law;
and
(4) the nature and seriousness of the danger to any person or the community that
would be posed by the person's release. In considering the conditions of release
described in subsection (c)(1)(B)(xi) or (c)(1)(B)(xii) of this section, the judicial
officer may upon his own motion, or shall upon the motion of the Government,
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conduct an inquiry into the source of the property to be designated for potential
forfeiture or offered as collateral to secure a bond, and shall decline to accept the
designation, or the use as collateral, of property that, because of its source, will not
reasonably assure the appearance of the person as required.
18 U.S.C. § 3142(g).
Defendant argues that his release would not pose a risk to the public because of the non-
violent nature of his offense, his good conduct during his incarceration, and his anticipated stability
upon release. The Court is not persuaded. While Defendant’s current conviction was for a non-
violent offense and did not involve possession of a firearm, it was his third conviction for drug
distribution and he qualified as a career offender for sentencing. 	ECF No. 54, ¶ 31. 	This
significantly undermines Defendant’s request in light of § 3142(g)(3)(A)’s required consideration
of Defendant’s criminal history and indicates there is a higher risk of recidivism. Also, §
3142(g)(3)(A)’s required consideration of past conduct means the Court must take note of
Defendant’s transgressions while incarcerated. 	Defendant has violated rules against contraband
during his current confinement (ECF No. 100-1, p. 5) and he committed a multitude of disciplinary
violations, including assault and battery, during his confinement for prior convictions in the
Arkansas Department of Corrections. ECF No. 54, ¶ 65. This propensity for violating rules raises
concerns of recidivism and weighs against an early release. The Court takes note of Defendant’s
educational efforts during his confinement and the stable living situation he anticipates upon
release through housing with his fiancé and potential disability benefits. However, those positives
are not enough to outweigh the concerns raised when analyzing Defendant’s motion under 18
U.S.C. § 3142(g)’s community safety considerations. Accordingly, Defendant’s motion must fail.
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CONCLUSION
For the reasons stated above, the Court finds that Defendant’s motion (ECF No. 93) should
be and hereby is DENIED.
IT IS SO ORDERED, this 8th day of April, 2021.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
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