FILED
IN THE UNITED STATES DISTRICT COURlfly 3
FOR THE SOUTHERN DISTRICT OF IUJNOt~ - 20K
In Re: Petitions for Retroactive )
Application of Amendment 782 (''Drugs )
Minus Two") to Sentences Previously ) No. 167
Imposed for Certain Drug Offenses )
AD:MINISTRATIVE ORDER
Reagan, Chief Judge:
The United States Sentencing Commission has revised the guidelines applicable to drug
trafficking offenses, generally reducing by two the offense levels assigned to the drug
quantities described in Sections 2D 1.1 and 2D 1.11. The Commission decided to make the
reduction-contained in Amendment 782 to the Sentencing Guidelines-retroactive. No
offender, of course, may be released unless the presiding judge reviews the case to determine
whether a reduced sentence poses a risk to public safety and is otherwise appropriate.
The Amendment (informally known as "Drugs Minus Two") became effective on November 1,
2014. To allow time for courts, probation officers, and the Bureau of Prisons to process
motions and prepare release plans, no sentence reductions based on the retroactive
application of Amendment 782 will be effective until November 1, 2015 or later.
The Commission estimates that over 46,000 offenders nationwide will be eligible to have their
cases reviewed under Amendment 782. In this District alone, hundreds of offenders will be
affected over the next several years; dozens will be eligible for immediate release on
November 1, 2015.
To ensure efficient adjudication, and based on three anticipated postures in which motions for
relief will be presented, the Court, en bane, orders the following:
1. Joint Motions
Representatives from the United States Attorney's Office ("USAO"), the United States
Probation & Pretrial Services Office ("Probation,") and the Federal Public Defender's
Office ("FPD") shall confer to identify offenders who may be eligible for sentence
reduction. Where an agreement is reached as to a specific sentence, the parties shall file
a joint motion indicating that agreement as soon as is practicable.
2. Contested Motions filed after FPD assessment
Where there is no agreement among the USAO, Probation, and FPD, the Court is not
authorized to appoint counsel for defendants seeking relief under Amendment 782. See
U.S. v. Foster, 706 F.3d 887 (7th Cir. 2013). However, the FPD is willing to enter its
appearance on behalf of eligible defendants. This appearance is voluntary, but once the
office appears on an offender's behalf the attorney-client relationship naturally attaches.
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The FPD shall file contested motions for relief as soon as practicable. When the FPD
moves for a sentence reduction, the Government shall file a response within fourteen
days.
3. ProSe Motions
Upon a pro se defendant's motion for retroactive application of Amendment 782, the
Clerk shall notify the FPD, which shall enter an appearance within seven days. Within
twenty-one days of that appearance, the FPD shall either supplement the pro se filing or
(should it feel compelled to withdraw due to a determination the petition is frivolous)
move to withdraw. If the FPD files a supplement to the prose motion, the Government
shall respond within 14 days. If the FPD moves to withdraw, it shall send a copy of the
motion to the offender at his/her last known address. (Probation is authorized to release
an offender's last known address to the FPD upon request). The defendant and the
Government have 30 days from the date of service to respond to a motion to withdraw.
Given the anticipated volume of joint FPD I USAO motions and the fact that no offender is
eligible for release until (at earliest) November 2015, the parties shall have 45 days to focus
on consensus rather than adversarial proceedings. Neither responses to contested motions
nor FPD supplements to prose motions shall be due until on or after December 15, 2014.
Thereafter, priority will be accorded to offenders based on the release date contemplated by
FPD (or joint) filings.
Should this District's FPD determine there is a prohibitive conflict, it shall enlist the FPD of
the Eastern District of Missouri for representation of that defendant through the interoffice
agreement it has worked out with that office. The FPD shall provide the Presentence
Investigation Report or Modified Presentence Investigation Report, the Judgment, and the
Statement of Reasons to any counsel who appears pursuant to that interoffice agreement.
Probation is authorized to disclose the defendants' Presentence Investigation Reports or
Modified Presentence Investigation Reports, Judgments, and Statements of Reasons to the
FPD (or retained counsel) and the USAO. No counsel shall further distribute any such
documents unless otherwise ordered by the Court. In accordance with the policy of the
Federal Bureau of Prisons, no Presentence Investigation Reports, Modified Presentence
Investigation Reports, Statements of Reasons, or any document not publicly available shall be
provided to any inmate.
Whether or not a defendant is represented by counsel, the presiding Judge (in consultation
with Probation) will carefully review each motion to reduce sentence to determine if a
reduction is in order under the law.
IT IS SO ORDERED.
Date: November 3, 2014 s/ Michael J. Reagan
Michael J. Reagan
Chief Judge
UNITED STATES DISTRICT COURT
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