USA v. White

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
FIL
APR 2 8 2922
UNITED STATES OF AMERICA, 1:I9-CR-I0024-CBK
Plaintiff,
vs.
THOMAS DANIEL WHITE, MEMORANDUM AND ORDER
Defendant.
I. BACKGROUND
Mr. Thomas White ("defendant"), having pled guilty to Bribery Concerning
Programs Receiving Federal Funds, in violation of 18 U.S.C. § 666(a)(1)(B), was
sentenced by this Court in October 2021 to 70 months imprisonment, three years of
Supervised Release, and ordered to pay $23,000 in restitution. Doc. 57. On March 17,
2022, defendant White motioned this Court for compassionate release pursuant to the
First Step Act of2018, 18 U.S.C. § 3582(c)(1)(A), and in the alternative, to be released to
home confinement to finish the remainder of his sentence. His two arguments center
around the COVID-19 pandemic, as well as living conditions at his prison camp. Mr.
White was not ordered to surrender into the custody of the U.S Marshal Service until
December 7, 2021. He is currently housed at Federal Prison Camp Yankton, in South
Dakota, with a scheduled release date of January 21, 2024.
Defendant's guilty plea stemmed from a 22-count indictment related to his
kickback scheme where he corruptly received thousands of dollars due to his position
with the Dakota Nations Development Corporation, in return for approving Tatanka's
Constracting LLC's bid to build an elderly village complex on land belonging to the
Sisseton-Wahpeton Oyate Sioux Tribe, a tribal government that received federal funds.
Instead of ensuring his Tribe's elderly population, some of its most vulnerable members.
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received the best quality contractors and builders to construct its new facility, Mr. White
reached out to John German with an offer. German, a worker at the Tribal Employment
Rights Office, formed Tatanka Contracting LLC with Kevin Trio and Mike Cebulla.
With German's majority ownership, Tatanka could gain Indian preference for
construction contracts planned by the Tribe. In White's call to German, he offered to
ensure Tatanka received the bid to construct the elderly village in return for an under-the-
table payment. Mr. German estimated that defendant White was paid approximately
$22,000 to $23,000 in $7,000 increments, while the defendant contests he only received
approximately $7,500. What's not in dispute is that White went behind the back of the
Tribe to line his own pocket. Through this bribe, Tatanka was awarded the contract,
netting $465,45.07 in profits. Because Mr. White betrayed the trust of his Tribe and
community, he was sentenced to 70 months in custody.
Mr. White has only just begun to serve his sentence. No doubt, COVID-19 is a
severe public health crisis that has upended our federal prison system and the nation more
broadly. But because none ofthe reasons offered by the defendant approach an
extraordinary and compelling circumstance, nor do the factors listed under 18 U.S.C. §
3553(a)lean in favor of an early release, Mr. White's motion for a reduction in term of
imprisonment should be denied.
11. DISCUSSION
A. Legal Standard
The Sentencing Reform Act of 1984, Pub. L. 98-473, Title II, § 212, authorized,
inter alia, the district court, upon motion ofthe Director of the BOP,to reduce a prison
term after considering the factors set forth in 18 U.S.C. § 3553(a),"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 Sentencing Commission."
The United States Sentencing Commission was established by the Sentencing Reform
Act, codified at 18 U.S.C. § 3582(c)(1)(A). Effective November 1, 2006, the Sentencing
Commission adopted Guideline §IB 1.13, the policy statement on reduction of a term of
imprisonment pursuant to § 3582(c)(1)(A). These provisions are known as the
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compassionate release provisions ofthe federal criminal code and the Federal Sentencing
Guidelines.
On Deeember 21, 2018, the First Step Act of 2018 was enacted. Pub. L. 115-391.
The First Step Act amended, inter alia, § 3582(c)(1)(A)to increase the use and
transparency of the compassionate release process. The Act added distriet eourt authority
to grant compassionate release upon motion of a defendant after the exhaustion of
administrative remedies. Frustratingly, though, the Federal Sentencing Guidelines have
not been amended since passage ofthe First Step Act in 2018.' This Court proceeds in
three steps:(1)assessing whether the defendanthas exhausted his administrative
remedies;(2) determining whether defendant has demonstrated that there are
extraordinary and compelling circumstances warranting early release; and (3)if he has
demonstrated such circumstances, whether the 18 U.S.C. § 3553(a) factors weigh in favor
of early release. United States v. Marcussen, 15 F.4th 855, 858(8th Cir. 2021){citing 18
U.S.C. § 3582(c)(l)(A)(i)).
B. Jurisdiction
Since 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). However, an exception
exists where a court "may reduce the term of imprisonment" when "extraordinary and
compelling reasons" exist under 18 U.S.C. § 3553(a) and that the "reduction is consistent
with applicable poliey statements issued by the Senteneing Commission." 18 U.S.C. §
3582(c)(l)(A)(i); United States v. Tavlor, 28 F.4th 929, 930(8th Cir. 2022)(per curiam).
The defendant carries the burden to show a sentence reduction is warranted under 18
U.S.C. § 3582(c). United States v. Jones. 836 F.3d 896, 899(8th Cir. 2016).
'The Commission lost its quorum in January 2019, stopping any progress in the Commission's work these past
three years. See Guerrant v. United States. — U.S. —,142 S. Ct. 640,641 (2022)(statement of Sotomayor, J.,
joined by Barrett, J.)("At this point, the Sentencing Commission has not had a quorum for three full years. As the
instant petition illustrates, the resultant unresolved divisions among the Courts of Appeals(conceming differing
interpretations of sentencing guidelines) can have direct and severe consequences for defendants' sentences."). See
also United States v. Rodd. 966 F.3d 740, 746 n.7(8th Cir. 2020)("As the Sentencing Commission lacks a quorum
to amend the U.S. Sentencing Guidelines, it seems unlikely there will be a policy statement applicable to
[compassionate-release] motions brought by defendants in the near future.")(alteration in original)(internal
quotations omitted).
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C. Exhaustion
This Court can only grant a sentence reduction upon motion of the defendant
"after [he] has fully exhausted all administrative rights to appeal a failure of the Bureau
ofPrisons to bring a motion on the defendant's behalf or the lapse of30 days from the
receipt ofsuch a request by the warden of the defendant's facility, whichever is earlier."
18 U.S.C. §3582(c)(1)(A). See United States v. Houck. 2 F.4th 1082, 1083-84 (8th Cir.
2021). Here, Warden K. Bennett denied Mr. White's request for consideration of
eompassionate release on January 25, 2022. Accordingly, this matter is now ripe for
adjudication.
D. Compassionate Release
Compassionate release offers defendants with "extraordinary and compelling
reasons" the opportunity to leave prison prior to the conclusion of their sentence. 18
U.S.C. § 3582(c)(l)(A)(i). However,§ 3582(c)(l)(A)(i) does not define what
"extraordinary and compelling reasons" may be; rather, that was left to the Commission.
And, as this Court has noted, the Commission has failed to offer such explanations to
date. Prior to the First Step Act, though, the Commission established four categories for
district courts to consider when reducing a defendant's term of imprisonment. Pursuant
to U.S.S.G. §1B1.13, Application Note 1, these four examples of extraordinary and
compelling reasons for compassionate release are:
(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 trajeetory). A specific prognosis of life expectaney (i.e.,
a probability of death within a specific time period) is not required. Examples
include metastatic solid-tumor eancer, amyotrophie 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 proeess,
that substantially diminishes the ability of the defendant to provide self-care
within the environment of a correetional facility and from which he or she is not
expected to recover.
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(B)Age of the 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 ineapaeitation of the caregiver ofthe defendant's minor child or
minor children.
(ii) The ineapaeitation 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 ofthe Bureau ofPrisons, 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).
The United States Court of Appeals for the Eighth Circuit has not yet decided
whether the district court is bound by the Sentencing Commission's policy statement
when considering a compassionate release motion under the First Step Act amendment
to § 3582(c)(1)(A). "While some courts adhere to the pre-First Step Act policy
statements, other courts have ruled that the pre-First Step Act policy statements are
inapplicable, and that a judge has discretion to determine, at least until the Sentencing
Commission acts, what qualifies as extraordinary and compelling reasons." United States
V. Rodd.966 F.3d 740, 745 (8th Cir. 2020)(cleaned up). To date, the Eighth Circuit has
not yet addressed whether district courts are bound to the pre-First Step Act applicable
policy statements. See United States v. Crandall. 24 F.4th 582, 584(8th Cir. 2022).
Chief Judge Lange has held that the "discretion given to the Director of the BOP
in §IB 1.13 comment note 1(D) also allows federal judges to consider 'extraordinary and
compelling reason[s] other than' those specifically described." United States v.
Dillabaugh. 2020 WL 3402392, at *3(D.S.D. June 19, 2020). In other words, district
courts are not limited by §IB 1.13 as drafted by the pre-First Step Act Sentencing
Commission. Utilizing this broader understanding also comports with the purpose ofthe
Act, which "was to expand the availability of compassionate release based on judicial
findings of extraordinary and compelling reasons without being restricted to those
categories identified by the Sentencing Commission or the rationale used by the BOP
before the passage of the First Step Act." United States v. Harwood, 2022 WL 1082371,
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at *4(D.S.D. April 11, 2022)(emphasis in original)(internal quotations omitted).
Ultimately, though, the Eighth Circuit has noted that "[s]o long as a district court does
not explicitly limit its discretion to the factors identified in U.S.S.G. §IB 1.13 and its
commentary, it is appropriate for this court to ignore what is, in substance, no more than
an academic debate." Marcussen. 14 F.4th at 859.
Here, the defendant makes two separate arguments for compassionate release, both
under the catch-all provision of Application Note 1 of U.S.S.G. §IB 1.13 for "Other
Reasons." One is because of dangers associated with the ongoing pandemic. The second
is his claim that the living conditions at FPC Yankton are "problematic." Motion FOR
Immediate Release,doc. 77 at 2. Both are addressed in turn.
1. Request for Release Because ofPandemic
First, and primarily, Mr. White focuses on the risks ofexposure to COVlD-19
while incarcerated. But as this Court has already observed:
There can be no doubt that the effects of the global COVlD-19 pandemic
are extraordinary, and that the disease in some situations may be an "other
reason" to grant compassionate release under § IB 1.13 comment note (D).
The illness and the potential for its spread has affected the daily life of
nearly every American citizen and has resulted in massive disruptions to
the economy. Despite these drastic effects, "the mere existence of COVID-
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 efforts
to curtail the virus's spread." The question becomes whether [defendant's]
medical conditions ... combined with the crowded conditions of
confinement justify compassionate release.
United States v. Campbell. 2022 WL 137977, at *4(D.S.D. Jan. 14, 2022)(alteration in
original)(internal quotations omitted).
Defendant brings the Court's attention to the list of maladies from which he is
experiencing, including hypertension, high cholesterol, chronic gout, ambilocal hernia,
enlarged adenoids causing beathing and sinus issues, testicular growth on tests, and prior
kidney malfunction. White's prison records list current ailments as obesity,
hyperlipidemia, essential hypertension, allergic rhinitis, gastro-esophageal reflux disease
without esophagitis, gout, and prediabetes. Indeed, obesity, is one such condition that
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leads to higher risk for severe COVID-19 outcomes. Underlying Medical Conditions
Associated with Higher Risk for Severe COVID-19:Information for Healthcare
Professionals, Ctrs. For Disease Control & Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-care/underlyingconditions.html
(updated Feb. 15, 2022). Additionally, this Court has previously found that hypertension
on its own would not constitute an extraordinary and compelling reason to justify an early
release. See United States v. Contreras, 504 F. Supp. 3d 1052, 1060(D.S.D. 2020).
Further, a sister district court has found high cholesterol unavailing as a specific risk
factor related to COVID-19. See United States v. Pittman. 465 F. Supp. 3d 912,917
(S.D. Iowa 2020). This Court has previously found that gastro-esophageal reflux disease
is not a listed medical condition that could increase the risk of severe COVID-19-related
symptoms. See United States v. Wieman, 2020 WL 5505908, at *3(D.S.D. Sept. II,
2020). Here, White's symptoms do not lean in favor of a finding of extraordinary and
compelling reasons to warrant early departure from FCP Yankton.
It is unquestioned that prisons can be a hotbed for infection during the pandemic.
See generalIv The COVID Prison Project, https://covidprisonproject.com/data/national
-overview/(last visited April 20, 2022). But White's prison records show he has not
been vaccinated against COVID-19 before entering custody and does not state if he has
received a vaccine since arriving in December 2021. If Mr. White is so worried about the
pandemic inside FCP Yankton, it befuddles the Court on why he would not have been
vaccinated while in custody.
Regardless, there are currently no staff or inmate confirmed cases of COVID-19 at
FCP Yankton. COVID-19 Cases, Federal Bureau of Prisons,
https://www.bop.gov/coronavirus/ (last visited April 20, 2022). While COVID-19
certainly constitutes an unprecedented public health risk, the reality is that defendant's
risk of infection at FCP Yankton has not been shown to be any higher than his risk of
contracting the virus while residing in Peever, South Dakota, the town he indicated his
significant other, Ms. Jenna Rolland, resides on his pre-sentence investigation interview.
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With no infections confirmed to be roaming the camp, White falls far short of providing
an extraordinary and compelling reason for early release.
Defendant also asserts he has obtained employment in Mobridge, South Dakota,
while failing to provide any details of what it may be. Vexingly, in his pre-sentence
investigation interview, Mr. White stated that Ms. Rolland resided in Peever. On his
motion for compassionate release. White states he would be living in his "home" with his
fiance, while not updating her town of residence. So, if defendant was living in Peever,
yet working in Mobridge, he would be facing over a three-hour commute in each
direction. The inconsistencies in White's motion cannot rise to the high bar of
extraordinary and compelling justifications for release.
2. Vazue Allegation of "Problematic"Livins Conditions
Second, Mr. White makes a brief assertion, void of substance, about "problematic"
living conditions at FPC Yankton. While it appears to be inextricably tied to his primary
ground of relief based around the pandemic, the Court will separately address this one
sentence of argument.
It is far from clear what the defendant is alluding to when saying the living
conditions are problematic at FPC Yankton. If he is referring to constitutional or
statutory challenges to the conditions of his confinement. White cannot use a motion for
compassionate release as the proper vehicle. Rather, he must bring a civil action against
the allegedly culpable prison and staff.
While the defendant has not met his burden to show extraordinary and compelling
reasons to justify release, the Court nevertheless proceeds to analyze whether the factors
listed in 18 U.S.C. § 3553(a) weigh in favor of granting compassionate release.
E. 18 U.S.C. S 3553(al Factors
I have considered all the § 3553(a) factors,just as I did during Mr. White's
original 2021 sentencing. These factors include the nature and circumstances ofthe
offense, the history and characteristics of the defendant, need for the sentence imposed,
kinds of sentences available, pertinent policy statements, need to avoid unwarranted
sentence disparities, and need to provide restitution to any victims ofthe offense. 18
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U.S.C. § 3553(a)(l)-(7). This review is not to be a "mechanical recitation ofthe §
3553(a)factors," but rather district courts must conduct a thorough consideration of all
relevant factors, weighing and analyzing them as required in the individualized matter at
hand. United States v. Salazar-Aleman. 741 F.3d 878, 881 (8th Cir. 2013)(internal
quotations omitted). See United States v. Ross. — F.4th —,2022 WL 997809, at *2(8th
Cir. 2022)("We do not require a district court to categorically rehearse each of the
section 3553(a) factors on the record when it imposes a sentence")(internal quotations
and alterations omitted).
1. Nature and Circumstances ofthe Offense
Mr. White put his own self-interest above that of his Tribe and the elders of his
community. Instead of ensuring the elderly housing project was offered to the best
builders at the best price, he intervened to line his own pockets with ill-gotten gains.
While he may have only received several thousand dollars in bribes, he helped lead to
over $460,000 in illicit profits for Tatanka. When given a position of leadership and trust
within his community. White abused his authority to care for himself above others. The
elderly ofthe Sisseton-Wahpeton Oyate Tribe deserve better. Tragically, Daniel White
tossed aside their interests for his own. It is clear that this factor leans against an early
release. For similar reasons, the Court finds a continued need to reflect the seriousness of
this crime. See United States v. Vandebrake, 771 F. Supp. 2d 961, 999-1000(N.D. Iowa
2011)(collapsing the nature and circumstances ofthe offense and need for appropriate
sentence prongs together in a single analysis).
2. History and Characteristics ofDefendant White
The defendant has little criminal history, which is laudable. Having never been
imprisoned and only convicted twice for matters over 20 years ago. White had no points
computed for his Criminal History Category when calculating his advisory guideline
sentencing range. White also does not have a history of alcohol or substance abuse, gang
activity, or worrisome addictions. The Court commends Mr. White's past volunteering in
his community, ranging from coaching wrestling and football, to more general service to
youths. Defendant has also successfully received a Bachelor of Arts degree from Dakota
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Wesleyan University in Mitchell, South Dakota. Before his indictment in this matter,
White was gainfully employed at the Tiospa Zina Tribal School in Sisseton, South
Dakota, working as a student services coordinator. However, because ofthis felony
conviction, the pre-sentence investigation report casts serious doubt that White can return
to this position following his imprisonment. The Court properly takes into consideration
the defendant's personal history and characteristics, while acknowledging this on its own
is not enough to justify release under the § 3553(a) factors.
3. Remainins ^ 3553(a) Factors
Considering the remaining § 3553(a) factors, including the need to afford adequate
deterrence, promote respect for the law, provide just punishment, deter criminal conduct,
and protect from further crimes of the defendant, among others, all factors lean against
early release. To afford adequate deterrence for demands of bribes at the expense of
one's own community, § 3553(a) demands that this Court turn away from an early
release. Anything else would trample on respect for the law. This original sentence
provides just punishment in this matter, while deterring further criminal conduct and
protecting the public. This Court's "lodestar is to ensure the sentence is 'sufficient, but
not greater than necessary.'" United States v. Clark. 467 F. Supp. 3d 684,694(S.D. Iowa
2020){quoting 18 U.S.C. § 3553(a)). White's original sentence accomplishes this task.
Accordingly, the defendant's motion should be denied.
HI. Conclusion
Daniel White has only just begun serving his sentence for seeking bribes and
abusing his position of authority within his Tribe. Justifications for early release or home
confinement because ofthe COVID-19 pandemic is unavailing when there is not a single
confirmed ease within TCP Yankton, among staff or inmates. Further, any assertions of
inadequate care while in the facility cannot be properly addressed in this motion, but
rather requires a separate civil action. This Court has carefully reviewed the defendant's
request for compassionate release and concludes there are no extraordinary and
compelling reasons to justify an early departure from his sentence. Even if there were
extraordinary and compelling reasons, however, the factors listed under 18 U.S.C. §
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3553(a) push strongly against early release. For the reasons laid out here, White should
not be released early pursuant to the First Step Act.
IT IS HEREBY ORDERED that defendant Daniel White's motion for immediate
release, Doc. 77, is denied.
DATED thisa 5-^.day of April, 2022
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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