USA v. Thompson et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
BRANDON QUINCY THOMPSON
a/k/a Terence Maceo Clay, Jr.,
a/k/a “Kadafi,” a/k/a Hanee Rashid
King, a/k/a Hanee Rasid King,
Defendant.
4:09-CR-40129-01-KES
ORDER DENYING MOTION
FOR COMPASSIONATE RELEASE
Defendant, Brandon Quincy Thompson, moves for compassionate release
under 18 U.S.C. § 3582(c)(1)(A)(i). Docket 156. Plaintiff, the United States of
America, opposes the motion. Docket 159. For the following reasons, the court
denies defendant’s motion for compassionate release.
BACKGROUND
On May 8, 2019, Thompson pleaded guilty to count 12 and count 19 of
the second superseding indictment. Docket 83, 88. Count 12 alleged sex
trafficking of a minor by force, fraud, or coercion in violation of 18 U.S.C.
§§ 1591(a)(l), 159l(a)(2), 1591(b)(l), 1591(b)(2), and 2(a) and 2(b). Docket 72.
Count 19 alleged solicitation to murder a federal witness in violation of
18 U.S.C. §§ 373 and 1512(a)(l). Id. On April 15, 2011, the court sentenced
Thompson to life in custody on count 12 and a consecutive 120 months in
custody on count 19. Docket 121 at 4; Docket 123 at 2.
Thompson is currently incarcerated at the United States Penitentiary
Terre Haute (USP Terre Haute), a high security penitentiary, in Terre Haute,
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Indiana. Fed. Bureau of Prisons, https://www.bop.gov/inmateloc (last checked
Mar. 9, 2021). The total population at USP Terre Haute is currently 1,187
persons. https://www.bop.gov/ locations/thp/ (last visited Mar. 9, 2021). As of
March 9, 2021, there are currently seven active COVID-19 cases among
inmates at USP Terre Haute and two among staff. BOP: COVID-19 Update,
https://www.bop.gov/coronavirus/ (last visited Mar. 9, 2021). There have been
two inmate deaths from COVID-19, and 728 inmates and 18 staff have
recovered as of March 9, 2021 at USP Terre Haute. Id.
Thompson claims he is more vulnerable to COVID-19 because he suffers
from hypertension, anxiety, depression, obesity, nerve damage, glaucoma, and
is a “heavy tobacco user.” Docket 156 at 3. Thompson is currently 37 years old.
See https://www.bop.gov/inmateloc. Thompson asserts his grandparents and
father are currently battling cancer, and states he intends to be their caretaker
if released. Docket 156 at 1, 18; Docket 160 at 3.
On May 25, 2020, Thompson completed a Request for Administrative
Remedy form, requesting to be considered for compassionate release due to
COVID-19. Docket 156-1 at 5-13. On May 28, 2020, the administrative remedy
coordinator denied Thompson’s request. Id. at 4. On December 14, 2020,
Thompson filed a pro se motion with the court for relief under the First Step
Act. Docket 156.
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.
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§ 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, requires both “extraordinary and compelling reasons” to
warrant a sentence reduction and the defendant must not pose a 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).
Thompson argues that the global COVID-19 crisis, his health conditions,
and his relatives’ medical conditions and their need for a caregiver satisfy the
“extraordinary and compelling reasons” standard under 18 U.S.C.
§ 3582(c)(1)(A)(i). Docket 156 at 1; Docket 156-1 at 11; Docket 160 at 3.
Thompson requests a sentence of time served. Docket 156.
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
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the FSA, however, Congress now permits 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). The court concludes Thompson has
exhausted the administrative remedies and reviews the matter on the merits.
II. Extraordinary and Compelling Reasons
Though § 3582(c)(1)(A)(i) provides for compassionate release upon a
showing of “extraordinary and compelling reasons,” Congress did not define
what constitutes “extraordinary and compelling.” 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.” Id. The Sentencing Commission did so by
limiting “extraordinary and compelling” reasons to four categories. USSG
§ 1B1.13, cmt. n.1(A)-(C). 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 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 Director of the Bureau of Prisons. USSG § 1B1.13, cmt.
n.1(D).
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The Sentencing Commission’s guidance in § 1B1.13 was provided prior
to the passage of the FSA amending § 3582(c)(1)(A), and has not been updated
because the commission lacks a quorum. See United States v. Beck, 425 F.
Supp. 3d 573, 579 n.7 (M.D.N.C. 2019) (“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.”). As a result, a number of district courts,
including this one, have questioned whether the previous policy statement still
applies. See United States v. Rodd, Criminal No. 13-230, 2019 WL 5623973, at
*3 (D. Minn. Oct. 31, 2019); United States v. Brown, 4:05-CR-00227-1, 2020
WL 2091802, at *5-6 (S.D. Iowa Apr. 29, 2020); United States v. Poole, 4:15-CR-
40099-KES, 2020 WL 4673329, at *2 (D.S.D. Aug. 12, 2020).
Because the FSA changed the way a compassionate release motion may
be brought, “several district courts have concluded that the discretion vested in
the BOP Director under the catch-all provision now belongs coextensively to
federal judges.” United States v. Condon, 458 F. Supp. 3d 1114, 1118 (D.N.D.
2020) (citing United States v. Fox, 2019 WL 3046086, at *3 (D. Me. July 11,
2019); Beck, 425 F. Supp. 3d at 578-80; United States v. Cantu, 423 F. Supp.
3d 345, 352-53 (S.D. Tex. 2019)); see also United States v. Rivernider, 2020 WL
597393, at *3 (D. Conn. Feb. 7, 2020). A fellow court in this district has held
that the “court retains its independent authority to consider the full slate of
extraordinary and compelling reasons that an imprisoned person might
bring[.]” (internal quotations omitted). This uncertainty has not yet been
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addressed by the Eighth Circuit. See United States v. Loggins, 966 F.3d 891,
892 (8th Cir. 2020) (“We need not decide whether the statute supersedes the
policy statement in this respect . . . .”); United States v. Rodd, 966 F.3d 740,
747 (8th Cir. 2020) (“We need not determine whether the district court erred in
adhering to the policy statements in § 1B1.13.”).
The statute instructs that the court may reduce a term of imprisonment
for “extraordinary and compelling reasons” if “such a reduction is consistent
with applicable policy statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c)(1)(A). This court has assumed the policy statements still apply
to compassionate release motions brought under the FSA and utilizes USSG
§ 1B.13, comment notes 1(A)-(D) to guide its analysis. See, e.g., United States v.
Dressen, 4:17-CR-40047-01-KES, 2020 WL 5642313, at *3 (D.S.D. Sept. 22,
2020) summarily aff’d (8th Cir. Oct. 9, 2020); United States v. Adame, 4:18-CR-
40117-05-KES, 2020 WL 7212096, at *3 (D.S.D. Dec. 7, 2020); United States v.
Nyuon, 4:12-CR-40017-01-KES, 2020 WL 7029873, at *3 (D.S.D. Nov. 30,
2020).
Thompson contends that his medical conditions put him at high-risk of
severe illness if he contracts COVID-19, and argues this combined with his
relatives’ serious health conditions satisfies the “extraordinary and compelling
reasons” standard under 18 U.S.C. § 3582(c)(1)(A)(i). Docket 156 at 1; Docket
156-1 at 11; Docket 160 at 3. The court analyzes Thompson’s claims under the
medical conditions category, USSG § 1B1.13 comment note 1(A), the family
circumstances category, USSG § 1B1.13 comment note 1(C), and the catch-all
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provision, USSG § 1B1.13 comment note 1(D).
Assuming the policy statements continue to apply to compassionate
release motions brought under the FSA, Thompson 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)
COVID-19 appears to pose a particular risk for individuals with certain
existing health conditions. The Centers for Disease Control and Prevention
(CDC) has identified the following conditions as ones that do pose an increased
risk of severe illness from COVID-19, including cancer, chronic kidney disease,
chronic obstructive pulmonary disease, heart conditions, obesity (a BMI of 30
or higher), type 2 diabetes, and several others. People with Certain Medical
Conditions, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/
coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html
(updated Feb. 22, 2021). The CDC advises that other medical conditions might
pose an increased risk of severe illness from COVID-19, including moderate to
severe asthma, hypertension or high blood pressure, liver disease, type 1
diabetes, and several others. Id.
The court has reviewed the medical records submitted in this case.
Thompson’s medical conditions include hypertension, possibly resolved, joint
derangement in his right elbow, and a leg injury. Docket 158 at 23-24.
Thompson’s hypertension is a condition that might increase the risk of severe
illness from COVID-19 if he were to contract the virus. Thompson’s other
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medical conditions—right elbow joint derangement and leg injury—are not
among those identified by the CDC as increasing or potentially increasing the
risk of severe illness from COVID-19.
The records reveal Thompson has a history of hypertension. Docket 158
at 183, 255, 262, 333, 399, 406, 440, 532. Currently, his hypertension is
categorized as controlled without the usage of medication. Id. at 1, 448, 532,
534. The BOP medical staff consider Thompson’s hypertension “resolved.” Id. at
566. Thus, this condition is not, in fact, a risk factor for him. Thompson also
claims to be obese, but based on his height (68 inches) and weight (180
pounds), his BMI is 27.4 which is considered overweight, not obese. Docket
158 at 1, 76; See also Adult BMI Calculator, https://www.cdc.gov/
healthyweight/assessing/bmi/adult_bmi/english_bmi_calculator/bmi_calculat
or.html (last visited Mar. 9, 2021). This court requires a more particularized
showing of risk than being overweight and having a resolved medical condition
that might increase the risk of severe illness due to COVID-19.
Recently, the Bureau of Prisons has implemented a COVID-19
vaccination plan and has begun administering vaccines to inmates and staff.
See BOP: COVID-19 Update, https://www.bop.gov/coronavirus/ (last visited
Mar. 9, 2021). As of March 9, 2021, 72,466 doses have been administered
systemwide. Id. At the Terre Haute correctional complex, 209 staff and 349
inmates have been fully inoculated as of March 9, 2021. Learn More About
Vaccinations and View Individual Facility Stats, https://www.bop.gov/
coronavirus/ (last visited Mar. 9, 2021). According to the BOP, those inmates
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who wish to receive the vaccine will have an opportunity to do so, but
[w]hen an institution receives an allocation of the vaccine, it is first
offered to full-time staff at that location, given that staff - who come
and go between the facility and the community - present a higher
potential vector for COVID-19 transmission. Vaccinating staff
protects fellow staff, inmates at the facility, and the community.
Id.
The court concludes Thompson’s health concerns coupled with the
present conditions at USP Terre Haute do not establish “extraordinary and
compelling reasons” for his early release. The court believes Thompson’s
medical conditions can be appropriately managed at USP Terre Haute, 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. That USP Terre Haute has had COVID-19 infiltrate the facility does
not negate such conclusions. On balance, the court is persuaded USP Terre
Haute has acted appropriately to treat inmates who contract COVID-19.
B. Family Circumstances Category, Note 1(C)
To justify compassionate release under the family circumstances
category, USSG § 1B1.13 comment note 1(C), the defendant must demonstrate
one of the following: (1) the “death or incapacitation of the caregiver of the
defendant’s minor children” or (2) 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.” Thompson advises the court that his
father and grandparents suffer from cancer. Docket 156 at 1; Docket 160 at 3.
There is no evidence in the record to substantiate his claims of their
deteriorating health. Even if the court were to consider that Thompson’s
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relatives may be incapacitated for purposes of Note (1)(C), the family
circumstances category specifically references care needed for a spouse or
minor children. See USSG § 1B1.13, cmt. n.1(C). Though the court is not
unsympathetic, Thompson does not qualify for release under the family
circumstances category.
C. 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). Thompson’s medical conditions
together with his relatives’ need for care does not convince the court that
“extraordinary and compelling” reasons exists to release Thompson from
custody early.
III. Sentencing Factors of § 31583(a)
Although the court need not consider the 3553(a) factors because
Thompson’s circumstances fail to meet the high bar of “extraordinary and
compelling” reasons warranting a sentence reduction, such sentencing factors
underscore the point.
Thompson was convicted of two very serious offenses, sex trafficking of a
child by force, fraud, or coercion and solicitation to murder a federal witness.
Ten minor victims were identified to have been manipulated and coerced to
engage in sexual acts. PSR ¶ 10. The victims’ ages ranged from 14 to 17 years
old. Id. Thompson began recruiting young women in 2007 and continued until
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the time of his arrest. Id. ¶¶ 18-60. Thompson utilized the internet and actively
pursued the recruitment of these victims. Id. ¶¶ 18-20, 24, 28, 30-31, 37, 38,
49. Thompson required his victims to change their names and forced them to
lie about their ages to his clients. Id. ¶ 19. While detained, Thompson
attempted to hire his cellmate to murder any victims planning to testify against
him. Id. ¶¶ 61-64.
The total offense level on both counts was calculated as 60 but was later
adjusted to an offense level of 43, pursuant to Chapter 5, Part A. Id. ¶ 211.
Thompson had 21 scorable criminal history points resulting in a criminal
history Category VI. Id. ¶¶ 241-43. The sex trafficking offense had a mandatory
minimum of 15 years in custody and a maximum term of imprisonment of life.
Id. ¶ 295. The advisory guideline range for Thompson’s sex trafficking offense
was life. Id. ¶ 296. The court sentenced Thompson to life in custody for count
12 and 120 months in custody for count 19 to be served consecutively. Docket
123 at 2. Thompson’s current sentence is within the guideline range and
reflects the cruel, destructive, and devastating nature of his offenses.
The court’s sentencing decisions were made with care, considering
Thompson’s offenses, history and characteristics, and all the other applicable
sentencing factors. The court concludes Thompson’s sentence of life in custody
followed by 120 months incarceration continues to be appropriate for the
seriousness of the crimes to which he pleaded guilty.
CONCLUSION
Thompson has failed to satisfy the extraordinary and compelling reason
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standard. Thus, it is
ORDERED that defendant’s motion for relief under the First Step Act
(Docket 156) is denied.
Dated March 10, 2021.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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