on the estimated release date, regardless of whether the defendant has filed a motion, as the
Court may choose to reduce a sentence under 18 U.S.C. § 3582(c)(2) on its own.
After reviewing Probation’s recommendation, the Court may enter an order that:
appoints counsel (if appropriate) for the defendant; directs Probation to make its analysis
available to the defendant or defense counsel and the United States; directs the United States
to respond to the recommendation within 14 days; and permits the defendant or defense
counsel to file a reply to the United States’ response with 14 days of service of the response.
For cases in which Probation finds a defendant to be potentially eligible, but having an
expected release date prior to the February 1, 2024, effective date, Probation will draft a brief
memorandum and tender for the Court’s consideration an AO 247 indicating that motion is
denied as moot.
II. Motions for Relief Under the 2023 Criminal History Retroactive
Amendment
If a pro se defendant submits a letter to the Court requesting relief under the 2023
Criminal History Retroactive Amendment, the Clerk shall accept the letter and file it as a
motion seeking relief under the amendment. The Court will review such letters in accordance
with the procedures set forth in this General Order.
A. Appointment of Counsel
Appointment of counsel is not required. However, the Court in its discretion and
pursuant to the provisions of the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, may
appoint counsel to defendants identified by the USSC as potentially eligible for relief under
the 2023 Criminal History Retroactive Amendment. The Court also may appoint counsel for
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defendants who are not on the list but have filed motions and have been determined to be
potentially eligible for relief.
If a defendant was appointed counsel previously under the CJA, the Court may assume
that the defendant is indigent, and counsel may be appointed. However, to confirm each
defendant’s present financial circumstances, the Clerk’s Office shall forward to each defendant
identified for appointment of counsel a new CJA-23 Financial Affidavit to be completed and
returned to the Clerk Office and filed under seal upon receipt.
If a defendant previously was represented by retained counsel, the Clerk of the Court
shall contact retained counsel to determine if he or she intends to continue representation of
the defendant.
B. Review of Motions
When a defendant files a motion seeking a sentence modification under the 2023
Criminal History Retroactive Amendment, whether in a pro se capacity or through counsel,
Probation shall, upon the assigned judge’s request, prepare an analysis of the amendment’s
impact on the defendant’s sentence. As part of its analysis, Probation shall include among
other relevant information: a conclusion regarding whether the defendant meets the criteria
outlined in newly added United States Sentencing Guidelines § 4C1.1, Part C, which is
applicable to certain zero-point offenders; a brief memo indicating post-conviction conduct
per the United States Bureau of Prisons; and a statement of whether the defendant is currently
incarcerated. Probation shall recommend a modified sentence, if appropriate.
If Probation concludes, and the Court agrees, that the defendant is currently
incarcerated and is eligible for a reduced sentence under the 2023 Criminal History Retroactive
Amendment, the Court may enter an order that: appoints the defendant counsel (if appropriate);
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directs Probation to make its report available to the defendant or defense counsel; directs the
United States to respond to the defendant’s motion within 14 days; and permits the defendant
or defense counsel to file a reply to the United States’ response with 14 days of service of the
response.
If Probation concludes, and the Court agrees, that the defendant is not currently
incarcerated or is not eligible for a reduced sentence under the 2023 Criminal History
Retroactive Amendment, the Court may enter an order that directs the United States to file a
response to the defendant’s motion within 14 days, and permits the defendant (whether
represented by counsel or proceeding pro se) to file a reply to the United States response within
14 days of service of the response.
Dated: November 1, 2023.
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