USA v. Baade et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
COREY LEE ROELFSEMA,
a/k/a “Butters,”
Defendant.
4:17-CR-40023-02-KES
ORDER DENYING MOTION FOR
RELIEF UNDER THE
FIRST STEP ACT
Defendant, Corey Lee Roelfsema, filed a second motion for compassionate
release under 18 U.S.C. § 3582(c)(1)(A)(i). Docket 194. Plaintiff, the United
States of America, opposes the motion. Docket 197. For the following reasons,
the court denies defendant’s second motion for compassionate release.
BACKGROUND
On October 4, 2017, a jury found Roelfsema guilty of conspiracy to distribute
a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846. Docket 107;
Docket 108 at 4. On January 4, 2018, the court sentenced Roelfsema to 240
months in custody followed by ten years of supervised release. Docket 153 at 2;
Docket 154 at 2-3. His projected date of release is August 28, 2035. Docket 196 at
149.
Roelfsema is incarcerated at FCI Greenville, a medium security federal
correctional institution in Greenville, Illinois. Docket 194 at 4; FCI Greenville, Fed.
Bureau of Prisons, https://www.bop.gov/locations/institutions/gre/ (last visited
Feb. 23, 2022). The total population at FCI Greenville is 1,149 persons. FCI
Greenville.
In support of his motion, Roelfsema argues the current circumstances at
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FCI Greenville, his family circumstances, and the application of the
841-enhancement1 due to his prior drug conviction at sentencing warrants
compassionate release from custody. Docket 194 at 1; Docket 196 at 151-156.
Roelfsema submitted a reduction in sentence application on September 27, 2021.
Docket 196 at 151. On December 3, 2021, the warden denied his application. Id.
at 157. Consequently, Roelfsema filed a pro se motion with the court for
compassionate release under the First Step Act. Docket 194.
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.
§ 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 was passed, requires both “extraordinary and compelling
reasons” to warrant a sentence reduction and that the defendant not pose a
1 Roelfsema references an 841-enhancement throughout his filings. But he actually
is referring to the 851 enhancement that was applied by the Court under
21 U.S.C. § 851.
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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).
Roelfsema argues that the global COVID-19 pandemic, his family
circumstances, the application of the 851-enhancement to his case, and the
current conditions of FCI Greenville satisfy the “extraordinary and compelling
reasons” standard under 18 U.S.C. § 3582(c)(1)(A)(i). Docket 194 at 1; Docket
196 at 151-56.
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 the FSA, however,
Congress has now permitted 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).
On September 27, 2021, Roelfsema submitted to the warden a reduction in
sentence application due to COVID-19. Docket 196 at 151-56. On December 3,
2021, the warden denied his application. Id. at 157. Having presented his request to
the warden and being denied, and hearing no objection from the United States, the
court will presume Roelfsema has satisfied the administrative exhaustion
requirement and will review the matter on the merits.2
2 The warden’s response states that if Roelfsema is not satisfied with the decision,
he may commence an appeal through the administrative remedy process within 20
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II. 	Extraordinary and Compelling Reasons
The Sentencing Commission was directed by Congress to describe what
“should be considered extraordinary and compelling reasons” for compassionate
release and fashion “the criteria to be applied and a list of specific examples.” See
28 U.S.C. § 994(t). 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 also 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 BOP. USSG § 1B1.13, cmt.
n.1(D).
The court has detailed the governing law and the analysis it uses when
confronted with a compassionate release motion in many previous orders. E.g.,
United States v. Shields, 3:07-CR-30106-01-KES, 2021 WL 765001, at *2-3 (D.S.D.
Feb. 26, 2021); United States v. Muhs, 4:19-CR-40023-02-KES, 2021 WL 534517, at
*2-3 (D.S.D. Feb. 12, 2021); United States v. Adame, 4:18-CR-40117-05-KES, 2020
WL 7212096, at *2-3 (D.S.D. Dec. 7, 2020); United States v. Nyuon, 4:12-CR-40017-
01-KES, 2020 WL 7029873, at *2-3 (D.S.D. Nov. 30, 2020). The court has assumed
the policy statements still apply to compassionate release motions brought under
the FSA and utilizes USSG § 1B.13, Notes 1(A)-(D) to guide its analysis. See, e.g.,
Muhs, 2021 WL 534517, at *3.
days of the receipt of the response. Docket 194 at 3. There is no indication that
Roelfsema appealed the decision administratively.
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Roelfsema contends that the ongoing COVID-19 pandemic in combination
with the current conditions of FCI Greenville, his family circumstances, and the
851-enhancement applied at sentencing satisfies the “extraordinary and compelling
reasons” standard under 18 U.S.C. § 3582(c)(1)(A)(i). Docket 194 at 1; Docket 196 at
151-56. Therefore, the court will analyze his circumstances under the medical
conditions category, USSG § 1B1.13 Note 1(A), the family circumstances category,
USSG § 1B1.13 Note 1(B), and the catch-all provision, USSG § 1B1.13 Application
Note 1(D).
Assuming the court’s discretion to consider compassionate release is at least
as broad as the outdated policy statement of the Sentencing Commission,
Roelfsema 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)
As relevant here, the medical conditions category applies when the defendant
is suffering from a serious physical or medical condition that substantially
diminishes his ability to provide self-care within a correctional facility and from
which he is not expected to recover. USSG § 1B1.13 cmt. n.1(A)(ii)(I).
COVID-19 appears to pose a particular risk for individuals with certain
existing health conditions. The Centers for Disease Control and Prevention (CDC)
updated its current understanding of these risks. See People with Certain Medical
Conditions, Ctrs. for Disease Control & Prevention (Feb. 15, 2022),
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-
medical-conditions.html. The CDC states individuals with the following conditions
are more likely to become very sick with COVID-19: cancer, chronic kidney disease,
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chronic liver disease (such as alcohol-related liver disease, non-alcoholic fatty liver
disease, autoimmune hepatitis, and cirrhosis), chronic lung diseases (including
moderate to severe asthma, bronchiectasis, bronchopulmonary dysplasia, chronic
obstructive pulmonary disease (COPD), emphysema, chronic bronchitis, interstitial
lung disease, idiopathy pulmonary fibrosis, pulmonary embolism, and pulmonary
hypertension), cystic fibrosis, dementia or other neurological conditions, diabetes
(type 1 or type 2), having certain disabilities (such as ADHD, cerebral palsy, birth
defects, intellectual and developmental disabilities, learning disabilities, spinal cord
injuries, or down syndrome), heart conditions (such as heart failure, coronary artery
disease, cardiomyopathies, or hypertension), HIV infection, immunocompromised
state (having chemotherapy or a solid organ transplant), mental health conditions
(having mood disorders, including depression, and schizophrenia spectrum
disorders), being overweight or obese, partaking in little or no physical activity,
pregnancy, sickle cell disease or thalassemia, being a current or former smoker,
having a solid organ or blood stem cell transplant, stroke or cerebrovascular
disease, substance abuse disorders (such as alcohol, opioid, or cocaine use
disorder), and tuberculosis. Id.
The court has reviewed the medical records submitted in this case. Currently,
Roelfsema does not suffer from any medical conditions. Docket 196 at 30, 143.
Additionally, he is not taking any prescribed medications. See id. at 81, 137. He was
placed on quarantine and tested negative for COVID-19 on three dates in November
of 2020. Id. at 156. His other medical conditions have been categorized as resolved
or in remission, which leads the court to believe that Roelfsema is adequately
healthy. Id. at 156-57.
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The court has required a more particularized showing of a risk of serious
illness from COVID-19 when evaluating compassionate release motions. Roelfsema’s
health conditions do not prevent him from providing self-care in a correctional
facility setting, and his medical conditions do not amount to extraordinary and
compelling circumstances.
Additionally, the COVID-19 pandemic alone is insufficient to warrant early
release. The BOP has made significant changes to correctional operations since the
pandemic started in early 2020. See BOP Modified Operations, Fed. Bureau of
Prisons, (Nov. 25, 2020), https://www.bop.gov/coronavirus/. These include
sanitary and safety measures, restrictions on movement, and visitation restrictions,
among others. Id. The BOP has also transferred many thousands of inmates to
home confinement. See Frequently Asked Questions Regarding Potential Inmate
Home Confinement in Response to the COVID-19 Pandemic, Fed. Bureau of Prisons,
https://www.bop.gov/coronavirus/ (last visited Feb. 23, 2022). Since March 26,
2020, 38,365 inmates have been placed in home confinement. Id. These measures
have led to a dramatic decrease in the total BOP population, which in turn has
increased opportunities for social distancing and reduces the strain on BOP
resources.
The court believes Roelfsema’s medical conditions are appropriately managed
at FCI Greenville, 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. The fact that FCI Greenville had a COVID-19 outbreak
does not negate such conclusions. The data for FCI Greenville demonstrates a
widespread COVID-19 outbreak that was ultimately contained. See BOP Modified
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Operations, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited
Feb. 23, 2022). There were no deaths as a result, and 816 inmates have recovered.
Id. The total population at FCI Greenville is currently 1,149 persons. See FCI
Greenville. This persuades the court that FCI Greenville has acted appropriately to
treat inmates who do contract COVID-19. The court believes the facility will
continue to appropriately treat inmates who do so.
The BOP’s vaccination program for staff and inmates is another protective
measure warranting consideration in this stage of the COVID-19 pandemic. The
BOP has implemented a COVID-19 vaccination plan to protect inmates and staff
and limit the transmission of COVID-19 within the facilities. See COVID-19, Fed.
Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Feb. 23, 2022).
As of February 16, 2022, 298,982 doses have been administered systemwide. Id. At
FCI Greenville, 194 staff and 1,152 inmates were fully inoculated as of February 23,
2022. Id. Because the total inmate population of FCI Greenville is 1,149 persons,
the data shows that a great majority of the prison population is vaccinated against
COVID-19. Id.; See FCI Greenville. Roelfsema refused a Pfizer vaccine on April 1,
2021. Docket 196 at 136. This leads the court to conclude Roelfsema is not overly
concerned about the risk of infection.
In light of the above, the court finds Roelfsema’s circumstances do not clear the
high bar necessary to warrant compassionate release for “extraordinary and
compelling reasons” under 18 U.S.C. § 3582(c)(1)(A)(i).
B. 	Family Circumstances Category, Note 1(C)
To justify compassionate release under the family circumstances category,
USSG § 1B1.13 Note 1(C), the defendant must demonstrate one of the following:
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(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.” Roelfsema claims his mother was recently diagnosed with cancer and
COVID-19. Docket 194 at 1; Docket 196 at 151. Roelfsema’s father was also
diagnosed with COVID-19. Docket 194 at 1. Roelfsema argues that he should be
allowed to go home instead of being in a high-risk prison environment for COVID-
19, and that he should be considered for compassionate release because he
intends to be his mother’s caretaker. Docket 196 at 151.
The burden to establish that a sentence reduction is warranted under 18
U.S.C. § 3582(c) rests with the defendant. Jones, 836 F.3d at 899. Roelfesma has
failed to substantiate any of his claims. There is no evidence in the record that
demonstrates his mother’s depleting health, or his father’s COVID-19 diagnosis.
Docket 196 at 151; Docket 194. Even if the court were to consider that
Roelfesma’s mother and father may be incapacitated for purposes of Note (1)(C),
the family circumstances category specifically references care needed for minor
children or a spouse. See USSG § 1B1.13, cmt. n.1(C). Though the court is not
unsympathetic, Roelfesma 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). Roelfsema claims that an 851-enhancement due to his
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criminal history was applied in error at sentencing and he raises various issues
with his case. Docket 196 at 152-57. Furthermore, he adds that he was not able to
file a timely appeal due to lack of resources. Id. at 153-55.
The court concludes the enhancement was applied appropriately. On
September 25, 2017, the government filed an information pursuant to 21 U.S.C.
§ 851(b) notifying Roelfsema of its intention to seek an increased punishment due to
Roelfsema’s prior conviction for a felony drug offense. Docket 77. The statute
requires the defendant to affirm or deny whether he was previously convicted of the
alleged felony drug offense before a sentence can be imposed. See 21 U.S.C.
§ 851. The Presentence Investigation Report (PSR) listed the prior conviction in his
criminal history category. Docket 140 ¶ 41. No objections to the PSR were filed
challenging the conviction and Roelfsema orally affirmed the conviction at
sentencing. Docket 141; See FTR Gold Recording at Jan. 04, 2018, 3:08:02. As a
result of the enhancement, when Roelfsema was sentenced in 2017, he faced a
mandatory minimum sentence of 240 months in custody. Docket 141 ¶¶ 75-76.
Roelfsema further challenges his mandatory minimum of 240 months under
the Sentencing Guidelines. Docket 194 at 1. He argues that since the passing of the
FSA, the guidelines reflect a mandatory minimum of 180 months, to which he
claims he is entitled. Id. But because Roelfsema was sentenced before the
enactment of the FSA, he does not qualify for a sentence reduction under Section
404. The FSA “does not make the Section 401 amendments retroactive.” United
States v. Grant, 813 F. App’x. 246, 249 (8 th Circ. 2020). Section 401 is the part of
the FSA that amended 21 U.S.C. §§ 802 and 841 and redefined certain mandatory
minimums for convictions under § 841. Section 404, which applies to crack cocaine
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offenses, was made retroactive. And this court has previously found that § 404 can
be applied retroactively only to crack cocaine offenses. See United States v.
Chantharath, No. 4:10-CR-40004-01-KES, 2019 WL 11664520, at *1 (D.S.D. Dec.
16, 2019), aff'd, No. 20-1017, 2020 WL 8270548 (8th Cir. Feb. 6, 2020). Given that
Roelfsema was convicted of an offense that involved the distribution of
methamphetamine, he is not entitled to a reduction in sentence under the FSA.
Lastly, the court previously held that Roelfsema’s time for appeal of his
judgment of conviction has expired. A judgment was filed on January 4, 2018, and
more than 14 days have passed since the filing of the judgment. Docket 154. In
conclusion, the court finds that the circumstances cited by Roelfsema do not
warrant a reduction in sentence under the catch-all category, Note 1(D).
III. 	Sentencing Factors of § 3553(a)
The 3553(a) sentencing factors further show that compassionate release is not
warranted. Roelfsema’s conviction stems from a conspiracy to distribute a
controlled substance. At trial, various witnesses testified to Roelfsema’s
involvement in methamphetamine distribution. Docket 140 ¶¶ 8, 10-17. Roelfsema
sold and purchased various amounts of methamphetamine during the conspiracy.
Id. One of the witnesses was a co-defendant and Roelfsema’s childhood friend. Id.
¶ 10. He testified that he began selling methamphetamine to Roelfsema in 2016.
Id. ¶ 11. Roelfsema purchased 4-ounce quantities on numerous occasions. Id.
Roelfsema also helped his source complete a drug transaction that involved three
kilograms of methamphetamine. Id. ¶¶ 12, 14-15. The total amount of drugs
attributed to the defendant was roughly three kilograms. Id. ¶ 18.
The total offense level was calculated as 32 and Roelfsema was in criminal
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history category IV. Id. ¶¶ 32, 45. As a result, the guideline range was 168 to 210
months in custody; however, the offense had a mandatory minimum of 240
months in custody. Id. ¶¶ 75-76. The court sentenced Roelfsema to the mandatory
minimum of 240 months in custody. Docket 154 at 2. Roelfsema has served
approximately 17% of his full term and 20% of his statutory term. Docket 196 at
150. After careful consideration, the court concludes Roelfsema’s sentence of 240
months continues to be appropriate for the seriousness of the crime to which he
was found guilty.
CONCLUSION
Roelfsema has failed to satisfy the extraordinary and compelling
reason standard. Thus, it is
ORDERED that the defendant’s second motion for compassionate release
under the First Step Act (Docket 194) is denied.
Dated February 23, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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