Defendant's Traverse, Motion for Reduction of Sentence — United States v. Gautreaux (S.D. Tex., Dkt. 78)

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Defendant's Traverse to Government's Response to His Motion for Reduction of Sentence, Document 78, filed 05/19/22, in Case 4:21-cr-00047 (Southern District of Texas, Houston Division), submitted pro se by Jase DePaul Gautreaux. It states that the Government misconstrued the motion for compassionate release, that the defendant never invoked Section 3582(c)(2), and that the defendant presented extraordinary and compelling reasons. It states that the defendant has end-stage AIDS, that the Warden at FCI Texarkana denied a request for compassionate release on March 16, 2022, and that the Government's response never mentioned AIDS. The defendant asks the Court to reduce the sentence to time served and requests the appointment of counsel to obtain medical records from the BOP.

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Case 4:21-cr-00047 Document 78 Filed on 05/19/22 in TXSD Page 1 of 12

Jase DePaul Gautreaux
Reg. No. 17649-579

Federal Correctional Institution United States Courts

Southern District of Texas

4001 Leopard Drive FILED
Post Office Box 7000
Texarkana, TX 75505 MAY 19 2099

903-838 4587
Nathan Ochsner, Clerk of Court

DEFENDANT PRO SE

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION
UNITED STATES OF AMERICA, )
Plaintiff, ,
V. ' Crim. No. 4:21-CR-047
JASE DEPAUL GAUTREADX,
Defendant.

DEFENDANT’S TRAVERSE TO GOVERNMENT’S RESPONSE
TO HIS MOTION FOR REDUCTION OF SENTENCE
PURSUANT 18 U.S.C. § 3582(c)(1)(A)

Last Friday, the Biden administration warned the nation could see 100
million COVID infections and a potentially significant wave of deaths this fall and
winter, driven by new omicron subvariants able to overcome vaccines and natural
immunity.! This prediction comes as the Bureau of Prisons’ (BOP) COVID medical

care is subjected to fresh criticism. Healthcare news outlet Stat reported last week

1 https://www.washingtonpost.com/health/2022/05/06/fall-winter-coronavirus-
Case 4:21-cr-00047 Document 78 Filed on 05/19/22 in TXSD Page 2 of 12

that since November 2020, the BOP has “used just a fraction of the antiviral drugs
they were allocated to keep incarcerated people from getting seriously ill or dying of
Covid-19.”2 Stat said internal records show the BOP used less than 20% of the stock
“of the most effective antiviral drugs for treating COVID.”

Defendant, JASE DEPAUL GAUTREAUK, respectfully submits the following
traverse to the “Government’s Response Objection to Re-litigation of Sentencing
Factors Under 18 U.S.C. § 3582.” The Government completely misconstrued
defendant’s motion. The defendant moved the Court for compassionate release and
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(1)(A), as amended by §
603(b)(1) of the First Step Act of 2018. The defendant presented extraordinary and
compelling reasons to the Court.

18 U.S.C. § 3582(c)(2)

The Government states “[t]he defendant claims that the First Step Act alters
his sentence.” (ECF 77 at *1). No place in defendant’s motion does he claim the
First Step Act altered his sentence. The Government goes on to state “[t]his is NOT
the case and 18 U.S.C. § 3582(c)(2) only applies to a term of imprisonment based on
a sentencing range that has subsequently been lowered by the Sentencing
Commission, as with ‘crack’ cocaine cases.” Id. The Government has misconstrued
the case completely. At no time did defendant invoke § 3582(c)(2). In footnote 1 the

Government states “18 U.S.C. § 3582(c) states that a court may not modify a term of

2 https://(www.statnews.com/2022/05/05/prisons-paxlovid-incarcerated-people-
covid-19/
Case 4:21-cr-00047 Document 78 Filed on 05/19/22 in TXSD Page 3 of 12

imprisonment once it is imposed except in extraordinary and compelling cases.”
(ECF 77 at *1 n.1). The Government goes on to state “[h]e fails to cite authority to
support his claim and he does not qualify for a modification of his sentence under 18
U.S.C. § 3582(c)(2).” Id. at *1. The defendant never submitted any authority
pursuant to § 3582(c)(2) due to the fact he did not file for reduction pursuant to this
statute.

18 U.S.C. § 3582(c)(1)(A)

It is the Government’s position defendant filed his § 3582(c)(1)(A) motion
“due to potential health issues.” (ECF 77 at *2). The Government has taken the
position AIDS is a “potential health issue.” The defendant presented extraordinary
and compelling evidence in his motion for reduction of sentence pursuant to §
3582(c)(1)(A) in that he has end-stage AIDS from which he will never recover (ECF
75 at *8-9). The defendant is suffering from a serious physical or medical condition
that "substantially diminishes [his] ability ... to provide self-care within the
environment of a correctional facility and from which he [ ] is not expected to
recover." U.S.S.G. § 1B1.13 Application Note 1(A)(i). The defendant is not able to
obtain his medical records from the BOP and requests the appointment of counsel to
obtain these records. As an officer of the court, counsel will be able to obtain

defendant’s medical records from the BOP.

3 Defendant was able to obtain verification that he is HIV positive.
Exhibit 1 (BOP Medical Records).
Case 4:21-cr-00047 Document 78 Filed on 05/19/22 in TXSD Page 4 of 12

Defendant quoted case law supporting his position that AIDS is an
extraordinary and compelling reason to grant compassionate release. United States
v. Mason, 2020 U.S. Dist. LEXIS 100704, at *4, 2020 WL 3065303 (S.D. Miss. June
9, 2020) (“It is undisputed that persons with HIV or AIDS are among those most
susceptible to developing serious medical complications from the infection.”); United
States v. Figueroa, 2022 U.S. Dist. LEXIS 11870, at *4, 2022 WL 167536 (W.D. N.Y.
Jan. 18, 2022); United States v. Trent, 2020 U.S. Dist. LEXIS 62790, at *5, 2020 WL
1822242 (N.D. Calif. Apr. 9, 2020); United States v. Doles, 2020 U.S. Dist. LEXIS
241354, at *2, 2020 WL 7634584 (E.D. Va. Dec. 22, 2020); United States v. Moody,
2020 U.S. Dist. LEXIS 129946, at *3, 2020 WL 4059766 (S.D. Fla. June 16, 2020);
United States v. Figueroa, 2022 U.S. Dist. LEXIS 11870, at *4, 2022 WL 167536
(W.D. N.Y. Jan. 19, 2022). Acquired immunodeficiency syndrome (AIDS) is defined as an

HIV infection with either a CD4* T cell count below 200 cells per uL or the occurrence of
specific diseases associated with HIV infection. "A healthy immune system normally has a
CD4 count ranging from 500 to 1400 cells per cubic millimeter of blood." United States v.
Carter, 2020 U.S. Dist. LEXIS 1381346, 2020 WL 4194014, at *2 n.4 (S.D. Ga. July 21,

2020)) (citing www.webmd.com/hiv-aids/cd4-count-what-does-it-mean). "At levels below 200,
a person becomes susceptible to opportunistic infections." Jd. People with certain
underlying medical conditions might be at an increased risk for severe illness from
COVID-19, including those in an immunocompromised state from HIV. (CDC

Coronavirus Disease 2019 (COVID-19) Website, available at http://www.cdc.
gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.

html? CDC AA refVal=. See HIV and Opportunistic Infections, Coinfections, and

4
Case 4:21-cr-00047 Document 78 Filed on 05/19/22 in TXSD Page 5 of 12

Conditions, National Institute Health. aidsinfo.nih.gov/ understanding-hiv-
aids/fact-sheets/26/86/what-is-an-opportunistic-infection. See AIDS and
Opportunistic Infections, Center for Disease Control (July 2020). https://www.
cde.gov/hiv/basics/livingwithhiv/opportunisticinfections.html.

The medical department at FCI Texarkana refuses to prescribe for defendant
the medication Triumeg (generic name: abacavir, dolutegravir, and lamivudine)
because of cost, and the institution wants to prescribe Biktarvy because it is
cheaper. Biktarvy has made defendant sick in the past and defendant’s physician in
Houston discontinued its use when defendant had major reactions from the
medication. The Healthcare Administrator at FCI Texarkana informed defendant if
he catches COVID, he has little chance of surviving.

The petitioner made a request to the Warden at FCI Texarkana for
compassionate release under 18 U.S.C. § 3582(c)(1)(A) based on his serious medical
ailment. On March 16, 2022, the Warden denied the request (ECF 75 at 2). The
legislative intent behind passing the First Step Act was to promote rehabilitation,
“unwind decades of mass incarceration,” and increase the use and transparency of
compassionate release. United States v. Brown, 411 F. Supp. 3d 446, 448 (S.D. Iowa
2019). Having exhausted his administrative remedies, the defendant requests this
Court to exercise its discretion to reduce his sentence to time served under 18
U.S.C. § 3582(c)(1)(A) as amended by the First Step Act. The First Step Act imbues
the court with broad discretion to determine what constitutes extraordinary and

compelling reasons for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). Before
Case 4:21-cr-00047 Document 78 Filed on 05/19/22 in TXSD ‘Page 6 of 12

the enactment of the First Step Act, defendants were precluded from moving for
sentence reductions based on extraordinary and compelling reasons under 18
U.S.C. § 3582(c)(1)(A)(i). Only the BOP director could move for such a reduction.
Section 603 of the First Step Act amended § 3582(c)(1) to permit a sentence
reduction upon a motion by a defendant who has exhausted all administrative
remedies. 18 U.S.C. § 3582(c)(1)(A). The statute now permits a court to grant, upon
a defendant’s motion and after consideration of the applicable sentencing factors in
18 U.S.C. § 3553(a), a sentence reduction if the court finds “extraordinary and
compelling reasons warrant such a reduction” and “such a reduction is consistent
with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(1)(A). But there is no policy statement applicable to motions for
compassionate release filed by defendants under the First Step Act. United States v.
Beck, 425 F. Supp. 3d 5738, 579 (M.D. N.C. June 28, 2019). By its terms, the old
policy statement applies only to motions filed by the BOP and does not mention
motions filed by defendants. Id. (citing U.S.S.G. § 1B1.13, comment. n. 4). The old
policy statement no longer fits with the statute and thus does not comply with the
congressional mandate to guide the appropriate use of § 3582(c)(1)(A). United States
v. Cantu, 423 F. Supp. 3d 345, 350-51 (S.D. Tex. June 17, 2019).

The Government’s relies on USSG. § 1B1.13 as its standard. (ECF 77 at 2-
3). The Government admitted this standard is met if defendant is “suffering from a

serious physical or medical condition.” U.S.S.G. § 1B1.18, cmt. n.1(A)(ii). (ECF 77 at
Case 4:21-cr-00047 Document 78 Filed on 05/19/22 in TXSD ‘Page 7 of 12

3). There is no question but what AIDS is a serious medical condition. The
Government never once mentioned in its response the fact defendant has AIDS.

The United States Court of Appeals for the Fifth Circuit has held absent
updated guidance from the Sentencing Commission, the First Step Act, allows a
district court to consider extraordinary and compelling reasons to reduce a sentence
pursuant to 18 U.S.C. § 3582(c)(1)(A). United States v. Shkambi, 993 F.3d 388, 393
(5th Cir. 2021). The fact defendant has advanced AIDS supports extraordinary and
compelling justification to grant this motion.

It is the Government’s position “[t]he Defendant’s motion fails to address the
obvious benefits received by inmates who have access to the COVID vaccines and
better health care than most of the general public.” (ECF 77 at 3-4). The
Government failed to support this statement with any supporting facts and
documentation. In United States v. Brunetti, 2022 U.S. Dist. LEXIS 4604, 2022 WL
92753, at *4 (S.D. N.Y. Jan. 10, 2022) the Court held "[{i]n light of the rapid spread
of the Omicron variant and its partial resistance to the COVID-19 vaccines, the
Court ... concludes that [movant] has established that extraordinary and
compelling circumstances' support his release." In United States v. Rose, 2022 U.S.
Dist. LEXIS 706, 2022 WL 19174, at *1 (S.D. N.Y. Jan. 3, 2022), the Court held "the
COVID-19 pandemic, including the wildly contagious Omicron variant, constitutes
an extraordinary and compelling reason to grant the requested relief." In United
States v. Schumack, 2020 U.S. Dist. LEXIS 134766, at *5-6, 2020 WL 4333526 (S.D.

Fla. June 11, 2020), the Court held "Courts around the country have recognized
Case 4:21-cr-00047 Document 78 Filed on 05/19/22 in TXSD Page 8 of 12

that the risk of COVID-19 to people held in jails and prisons ‘is significantly higher
than in the community, both in terms of risk of transmission, exposure, and harm to
individuals who become infected." See United States v. Williams, 2020 U.S. Dist.
LEXIS 63824, 2020 WL 1751545, at *2 (N.D. Fla. Apr. 1, 2020) (quoting Basank v.
Decker, 449 F. Supp. 3d 205 (S.D. N.Y. 2020), and citing United States v. Harris,
451 F. Supp. 3d 64 (D. D.C. 2020)); United States v. Campagna, 2020 U.S. Dist.
LEXIS 54401, 2020 WL 1489829, at *2 (S.D. N.Y. Mar. 27, 2020); Castillo v. Barr,
449 F. Supp. 3d 915 (C.D. Calif. 2020); United States v. Kennedy, 449 F. Supp. 3d
713 (E.D. Mich. 2020); United States v. Garlock, 2020 U.S. Dist. LEXIS 53747, 2020
WL 1489980, at *1 (N.D. Calif. Mar. 25, 2020).

In the interest of justice, the Court should grant defendant’s motion in that
he has presented extraordinary and compelling circumstances. There is no cure for
AIDS, and defendant is not receiving adequate care in the BOP.4 The Bureau of
Prisons does not have a treatment regimen for inmates who have AIDS, and the
Government did not mention the fact defendant also suffers from hepatitis B,
syphilis, and asthma.

Respectfully submitted,

Defendant pro se

4 Two inmates were granted compassionate release last week due to
inadequate care. United States v. Wood, Case 18-cr-599 (ECF 161) (D.
Oregon May 5, 2022); United States v. Charlemagne, Case 18-cr-181 (ECF
98) (D. Conn. May 6, 2022).
Case 4:21-cr-00047 Document 78 Filed on 05/19/22 in TXSD Page 9 of 12

CERTIFICATE OF SERVICE

I HEREBY CERTIFY under penalty of perjury I placed a copy of
DEFENDANT'S TRAVERSE TO GOVERNMENT'S RESPONSE TO HIS MOTION
FOR REDUCTION OF SENTENCE PURSUANT 18 U.S.C. §3582(c)(1)(A) in the
United States Mail, first class postage affixed, addressed to:

Jim McAlister

Assistant United States Attorney
1000 Louisiana, Suite 2300
Houston, TX 77002

for the purpose of service herein. 28 U.S.C. § 1746.

JAse DePaul Gautreaux
Case 4:21-cr-00047

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Filed on 05/19/22 in TXSD Page 10 of 12

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