Court filing

Response in Opposition by USA as to Dara Buck — USA v. Buck (Dkt. 64, S.D. Ga.)

Filed December 20, 2023 in USA v. Buck; one of 69 filings from this case.

Record facts

Court	U.S. District Court for the Southern District of Georgia
Filed	2023-12-20

U.S. District Court for the Southern District of Georgia · No. 4:22-cr-00065-RSB-CLR · Doc. 64 · 2023-12-20 · Docket on CourtListener

Full text

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

UNITED STATES OF AMERICA

DARA BUCK

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CR422-065

GOVERNMENT’S RESPONSE IN OPPOSITION TO
DEFENDANT’S FOURTH 18 U.S.C. § 3582(c)(1)(A) MOTION

Defendant Dara Buck spearheaded a prolific fraud scheme in which she and
others illegally raked in millions of dollars from Covid-19 relief programs and
federal student loan forgiveness. She was sentenced to serve forty-two months in
prison for her extensive fraud. Her first act after being sentenced was to ask the
Court for an extension of her self-report date. She asserted inter alia that she was
“the sole parent in charge of raising her children and would like additional time to
make sure her estate is in order.” (Doc. 46 at 1.) The government did not oppose this
request, and the Court granted it. (Doc. 47.) To date, she has served only around
eight months. Now before the Court is her fourth motion for early release. (Doc. 62.)
This motion should be denied for many of the same reasons as her prior three
motions. Specifically, Buck has failed to show extraordinary and compelling reasons
that would justify shortening her sentence under 18 U.S.C. § 3582(c)(1)(A), and the
sentencing factors under 18 U.S.C. § 3553(a) counsel against any sentence reduction
in this case.
In Buck’s first motion, which she filed after she had been in prison for about
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three weeks, she claimed to be suffering from a raft of medical ailments—“severe
headaches, hearing loss, tears in both shoulders, 5 abdominal hernias, irritable
bowel syndrome with diarrhea, chronic kidney disease stage 3, liver enzymes,
osteopenia in [her] lower spine, ovarian failure, and arthritis in both shoulders,
knees, back, and both feet”—and, separately, she expressed concerns about her
aunt’s ability to care for her three minor children. (Doc. 48 at 1.) In her second and
third such motions, she abandoned her efforts to be released based on her own
purported medical issues and instead focused exclusively on her childcare concerns.
(Doc. 53; 55.) The Court properly denied all three of these motions on the grounds
that Buck had failed to show administrative exhaustion, that she had failed to show
extraordinary and compelling circumstances, and that even if she had satisfied
these prerequisites the sentencing factors were strongly against her. (Docs. 52; 61.1)
Although Buck has now cured her noncompliance with the statute’s threshold
requirement that she wait thirty days after asking the Bureau of Prisons (BOP) to
move on her behalf before moving herself, nothing has changed on the latter two
fronts, so the Court should deny this most recent attempt on those grounds.
For Buck to bring this motion properly, first she must either (1) have actually
exhausted the administrative process for asking BOP to bring the motion on her
behalf, or (2) have waited thirty days after asking BOP to do so via a request to her
warden. United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). Based on

1 This latter order addressed both the second and third motions.
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information provided by the Bureau of Prisons (BOP), the government understands
that Buck presented the warden with her most recent request for BOP to seek a
reduction in sentence on August 29, that the warden routed Buck’s request to BOP’s
general counsel in late November, and that BOP’s administrative review of the
request remains ongoing. Therefore, because more than thirty days have lapsed
since the warden’s receipt of Buck’s request, the Court is not obligated this time
around to dismiss the motion on failure-to-exhaust grounds.
However, Buck still has not demonstrated an extraordinary and compelling
reason for early release under U.S.S.G. § 1B1.13 and application note 1 because she
still has not shown that her children’s caregivers are incapacitated. See United
States v. Granda, 852 F. App’x 442, 446 (11th Cir. 2021) (“[I]t was Granda’s burden
to show that his circumstances warranted a reduction.”). In the first iteration of this
motion, Buck described her aunt as “currently ill[,] a recent cancer survivor still
battling with recovery.” (Doc. 48 at 1.) In the order denying that motion, the Court
concluded that “it appears from Buck’s statements that despite her aunt’s condition,
she is currently not incapacitated . . . .” (Doc. 52 at 6.) In the second and third
iterations of this motion, Buck claimed that her aunt had abandoned the children
and that Buck’s twenty-one-year-old daughter, who had stepped into the ostensible
breach, was not a suitable caregiver. (Doc. 53; 55.) In the order denying those
motions, the Court explained that “the scant evidence Buck provides does not
sufficiently prove her claims of the caregivers’ incapacitation.” (Doc. 61 at 1.)
In response to the Court’s two previous denials, Buck now strains to conform
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the facts to the legal requirement that she show genuine incapacitation. She now
claims more definitively that “[her] aunt, Maxine Buck, cannot care for [her]
children due to her health conditions.” (Doc. 62 at 1.) As support, Buck attaches a
letter from her aunt, who refers to herself as Maxine Buck-Gailliard, describing the
daily effects of her various medical issues. However, it is perhaps revealing that
Buck-Gailliard leads with a series of decidedly non-medical (but admittedly
sympathetic) complaints:
1. Her children are used to their mother’s way of everything and not
mine. I am “old school” and do not believe that a child should tell me
what they will and will not do.
2. I am not used to children going behind my back to the older sister to
get permission after I’ve told them no.
3. I am not used to kids sneaking out to the house, being “sassy no
manners” and stomping away when I am speaking.

(Doc. 62 at 4.)
Buck also attaches a short letter from Buck-Gailliard’s doctor that reads in its
entirety as follows: “Patient Maxine Buck-Gailliard has progressive chronic diseases
that make assisting others, lifting, stairs painful and difficult. These put the patient
at risk of further injury and worsened outcomes. She is not able to provide care for
the children.” (Doc. 62 at 3.) First, the rather conclusory final sentence of this letter
does not seem necessarily to follow from the more factual statements that precede
it. Second, it is an opinion on an ultimate issue that is the province of the Court,
and the Court is not obligated to assign it controlling weight. See United States v.
Giron, 15 F.4th 1343, 1346 (11th Cir. 2021) (explaining that while U.S.S.G. § 1B1.13
establishes a finite list of what can count as extraordinary and compelling
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circumstances under 18 U.S.C. § 3582(c)(1)(A), whether the evidence actually does
establish any of the things on that list is a question within the district court’s
discretion).

The United States is not insensitive to Buck-Gailliard’s medical conditions
and non-medical childcare travails. However, Buck’s evidence does nothing to
disturb the Court’s conclusion that Buck-Gailliard is not incapacitated; instead, it
actually provides further support for that conclusion. Taken together, these letters
establish that it is challenging but not impossible for Buck-Gailliard to supervise
the children, none of whom are so young as to require much if anything in the way
of carrying, holding, rocking, changing, and the like.

In the end, Buck “has shown nothing more than that which innumerable
defendants could no doubt establish: namely that the imposition of prison sentences
normally disrupts familial relationships.” United States v. Allen, 87 F.3d 1224, 1226
(11th Cir. 1996) (internal citation and punctuation omitted). Several other district
courts in our circuit have, in denying motions very similar to Buck’s, recognized
that the regrettable difficulties imposed on defendants’ family members are simply
one of the many inevitable downstream consequences of crime, not a justification for
release. See, e.g., United States v. Williams, No. 3:19-CR-33-BJD-JBT, 2021 WL
1238410, at *2 (M.D. Fla. Apr. 2, 2021) (“[U]nfortunately, it is not uncommon that a
defendant's children or dependents must be placed in the care of other people as a
consequence of the defendant's conviction. As such, this is not an extraordinary
circumstance.”); United States v. Peake, No. 6:13-CR-438-KOB-JHE, 2020 WL
Case 4:22-cr-00065-RSB-CLR Document 64 Filed 12/20/23 Page 5 of 9

7246617, at *4 (N.D. Ala. Dec. 9, 2020) (“Those arrangements [that the defendant’s
family members care for his children] may be difficult and take sacrificial actions,
but they are possible. The court is sympathetic towards Mr. Peake's mother's
situation, but her situation does not constitute an extraordinary and compelling
reason to reduce Mr. Peake's sentence.”); United States v. Lemy, No. 20-CR-80062-
RAR, 2023 WL 246895, at *3 (S.D. Fla. Jan. 18, 2023) (“Although [the defendant’s
mother] ‘suffers severely from diabetes, hypertension, impaired vision, and other
minor health problems,’ Mot. at 3, the Court is not at liberty to deviate from the text
of the policy statement and rewrite the Application Note to accommodate
Defendant.”).
Additionally, Buck-Gailliard is not going it alone; rather, Buck’s motion and
Buck-Gailliard’s letter reveal that Buck-Gailliard has assistance from Buck’s adult
daughter. To sweep away this inconvenient fact, Buck speculates, wholly without
explanation, that her adult daughter “will likely be taken into state custody” at a
December 8 court hearing pertaining to a pending criminal charge. (Doc. 62 at 1.)
However, Buck’s daughter is at liberty on a personal recognizance bond, (Doc. 62 at
10), for a felony offense that is alleged to have occurred on the relatively recent date
of May 12, 2023, (Doc. 62 at 9), and that therefore seems unlikely to reach trial in
the immediate future. Further, December 8 has come and gone, and Buck’s
daughter does not appear to be in jail or prison.2

2 See Dorchester County Inmate Lookup, available at
https://www.dorchestercountysc.gov/government/public-safety/sheriff-
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One additional point on the caregiver issue: Buck’s incapacitation argument
rests on the threshold notion that her aunt and adult daughter are the only possible
caregivers. Buck’s thinking here seems to be that if she establishes that they are
incapacitated, then she establishes extraordinary and compelling circumstances.
However, the government’s position is that she still has never proven—with
evidence—that none of the several other adult family members mentioned in the
presentence report can care for her children. It is her burden to do so. See, e.g.,
United States v. Lambert, No. CR 116-079, 2020 WL 5949627, at 2* (S.D. Ga. Oct. 7,
2020).
Finally, the United States need not restate the remarkable degree to which
application of the § 3553(a) factors counsels against a sentence reduction in this
case. For very good reasons, the Court has already twice indicated that even if Buck
had established extraordinary and compelling circumstances, the Court would deny
a sentence reduction on this independent basis anyway. Nothing about Buck’s
motion or the passage of two months since the Court’s last order effects any change
here.
For the foregoing reasons, the United States respectfully requests that the
Court deny Buck’s motion. Like the Court, the United States “hopes that Buck will
spend her time in prison contemplating the wrongfulness of her conduct and

soffice/detention-center (last visited Dec. 19, 2023); South Carolina Department of
Corrections Inmate Search, available at https://www.doc.sc.gov/inmate-search-
disclaimer (last visited Dec. 19, 2023).
Case 4:22-cr-00065-RSB-CLR Document 64 Filed 12/20/23 Page 7 of 9

seeking rehabilitation rather than attempting to shirk the responsibility of a
sentence that she unquestionably deserves.” (Doc. 52.)

Respectfully submitted,

JILL E. STEINBERG

UNITED STATES ATTORNEY

/s/ Timothy P. Dean

Timothy P. Dean

Assistant United States Attorney

Georgia Bar No. 506124

tim.dean@usdoj.gov

P.O. Box 8970
Savannah, Georgia 31412
(912) 652-4422
Case 4:22-cr-00065-RSB-CLR Document 64 Filed 12/20/23 Page 8 of 9

CERTIFICATE OF SERVICE

On December 20, 2023, I filed this response through this Court’s ECF system
and served all parties through the Notice of Electronic Filing. In addition, my office
mailed a paper copy to:
Dara Buck, Reg. No. 10895-510

FPC Alderson

Federal Prison Camp

Inmate Legal Mail

Glen Ray Rd. Box A

Alderson, West Virginia 24910