UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
IN RE: RETROACTIVE APPLICATION OF GENERAL ORDER
AMENDMENT 821 TO THE UNITED NO. 23-14
STATES SENTENCING GUIDELINES
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Before the Court is the United States Sentencing Commission’s (“Commission”)
retroactive application of Parts A and B, Subpart 1, of Amendment 821. See U.S.S.G. App. C.,
amend. No. 825; U.S.S.G. §1B1.10, p.s. (eff. Nov. 1, 2023). Part A of the amendment addresses
guideline §4A1.1 status points, decreasing them by one point for individuals with seven or more
criminal history points and eliminating status points for those with six or fewer criminal history
points. Subpart 1 of Part B creates a new §4Cl.l guideline that provides a decrease of two offense
levels for “Zero-Point Offenders” (no criminal history points) whose offense did not involve
specified aggravating factors.
In the interest of applying the retroactive amendment fairly, expeditiously, and without
undue expenditure of judicial resources, the Court has established procedures to, sua sponte,
review the sentences of currently incarcerated individuals whom the Commission, or the U.S.
Probation Office, has identified as being potentially eligible for a modification in their term of
imprisonment under Amendment 821. The Court has additionally established the procedures set
forth herein for reviewing motions filed by currently incarcerated individuals requesting a
modification in their imposed term of imprisonment pursuant to Amendment 821.
I. Appointment of Counsel
Pursuant to the Criminal Justice Act, 18 U.S.C. §§ 3006A(a)(1) and (c), the Office of the
Western Kentucky Federal Community Defender (“Federal Public Defender”) is hereby appointed
to represent any defendant convicted in this District, who was previously determined to have been
entitled to appointment of counsel or who is now indigent, to determine whether the defendant is
eligible for a reduction of sentence and to seek relief in accordance with 18 U.S.C. § 3582(c)(2)
and the 2023 Criminal History Amendments to the Sentencing Guidelines, Part A (Status Points
under § 4A1.1) and Part B (Zero-Point Offenders), made retroactive by Amendment 821.
Should the Federal Public Defender conclude that it cannot undertake the representation
described in this Order, whether due to conflict or capacity, it shall so inform the Clerk’s office
and a member of the Criminal Justice Act Panel shall be appointed to represent the defendant.
II. Defendants Identified by the Commission or Probation as Being Potentially
Eligible for a Modification of an Imposed Term of Imprisonment under
Amendment 821
The Commission has provided the Court with two lists of individuals who were sentenced
in the Western District of Kentucky and who appear to be eligible for a reduced sentence. One list
concerns defendants identified by the Commission as being potentially eligible for a modification
of sentence pursuant to Part A of Amendment 821, which relates to individuals assigned status
points under USSG § 4A1.1(d) when originally sentenced. The second list concerns defendants
identified by the Commission as being potentially eligible for a modification of sentence pursuant
to Part B of the Amendment, relating to individuals with zero criminal history points. The U.S.
Probation Office for the Western District of Kentucky (“Probation”) shall supplement these lists,
if necessary, by generating a report from the PACTS database of any additional defendants who
were assigned zero total criminal history points, or (2) who received criminal history points under
U.S.S.G. § 4A1.1(d), and who are still incarcerated.
The Court shall review the lists of cases provided to it by the Commission, as supplemented
by Probation, beginning with those cases of defendants closest to release or eligibility for
release. For each such case, Probation shall prepare and provide the Court with a Memorandum that
includes (1) the former guideline calculation and range; (2) the amended guideline calculation
or criminal history category and range; and (3) a recommended recalculated sentence or a
recommendation that the defendant is ineligible for a reduced sentence. For any defendant who is
charged with a violation of supervised release, Probation shall reference in its Memorandum
the criminal history category in effect at the time of the initial sentence and shall indicate if
the defendant had status points that contributed to the criminal history category calculation
and what the criminal history category would be considering the retroactive Application of
Part A of Amendment 821.
Probation shall provide the original sentencing judge or, if not available, the judge to whom the
case has been reassigned with a copy of the above-referenced Memorandum along with the original
presentence report, the original judgment, the original statement of reasons, and, if applicable, any
previously filed memoranda of recalculation and previously entered order reducing sentence.
The Court shall review, approve, or revise each recommendation from Probation and enter
a text order setting forth the following deadlines:
A. Probation’s Memorandum. Probation shall, within five (5) days of the order,
electronically file in CM/ECF its Memorandum, a copy of which shall be
released to both defense counsel and to the United States Attorney’s Office.
B. United States Attorney’s Office Response. The United States Attorney’s
Office shall file its response to Probation's Memorandum within fourteen (14)
days from the date the Memorandum is filed. If the United States Attorney’s
Office does not oppose Probation’s recommendation, it will file a submission
so indicating. Each response shall include information regarding any history
of disciplinary action related to the defendant and address any public safety
concerns related to his or her release.
C. Defense Reply. Defense counsel may file a reply within fourteen (14) days
following service of the United States Attorney’s Office response. If defense
counsel does not oppose either Probation’s recommendation or the United
States Attorney’s Office response, it shall file a submission so indicating and
the Court may take the matter immediately under advisement.
III. Pro Se Motions
It is anticipated that the Court will receive requests for reduced sentences from pro se
defendants. These requests may take a variety of forms with some being correctly labeled as
motions to reduce sentence, while others may arrive as letters to the Clerk’s office or to
chambers requesting a sentence reduction or general information on the applicability of
Amendment 821 to their case.
Any motion filed by or on behalf of any defendant who has been identified by the
Commission or Probation as being potentially eligible for a modification of an imposed term of
imprisonment under Amendment 821 shall be denied without prejudice as the Court will
consider whether such defendant is eligible for a modified sentence in accordance with the
procedure set forth in Section II of this General Order.
Pro se correspondence submitted by defendants who have not been identified by the
Commission or Probation as being potentially eligible for a modified sentence under Amendment
821 and that is deemed a motion to reduce sentence will be filed and the Federal Public
Defender’s Office will receive electronic notice. The Federal Public Defender’s Office will
then determine whether to represent the defendant in connection with the motion for a
sentence reduction.
For those cases in which the Federal Public Defender decides to represent a defendant,
the Federal Public Defender’s Office will file a Notice of Appearance and may file
supplemental papers in support of the motion. The Court shall thereupon enter the text order
referenced in Section II above.
If the Federal Public Defender’s Office decides not to represent the defendant, it will
send the individual a letter indicating that his or her representation will not be undertaken and
that he or she may continue pro se or retain an attorney to do so. The Federal Public
Defender’s Office will also advise the Court, Probation, and the United States Attorney’s
Office that it will not be representing the defendant. In such instances, the Court shall review
the pro se motion and may either enter the text order referenced in Section II above or may
direct Probation to submit to chambers a proposed order, using form AO 274, that sets forth
the reasons for denial of the motion for the judge’s consideration and signature without
requiring Probation to file a Memorandum or the U.S. Attorney’s Office to file a response.
Pro se correspondence that is not deemed a motion will be forwarded to the Federal
Public Defender’s Office. If the Federal Public Defender’s Office decides to represent the
defendant, it shall file a motion to reduce sentence on that individual’s behalf and the case
will proceed according to the procedure outlined above. If the Federal Public Defender’s
Office decides not to represent the defendant, it will send the individual a letter indicating that
representation will not be undertaken and that he or she may file a motion to reduce sentence
pro se or retain an attorney to do so.
IV. Motions Filed by Retained Counsel
If a motion is filed on behalf of a defendant by an attorney other than the Federal Public
Defender’s Office, the procedure outlined in Section II above shall be followed.
V. Generally Applicable Procedures
A. Notice of Electronic Filing. Once a motion to reduce sentence is filed, the
Clerk’s Office shall automatically transmit a Notice of Electronic Filing (NEF)
to the judge assigned to the case, Probation, the United States Attorney’s
Office, and the Federal Public Defender’s Office. Each of these offices is
responsible for designating the particular individual(s) who shall receive the
NEF.
B. Access to Criminal Case Documents. The Court authorizes Probation to disclose
Presentence Investigation Reports and Judgement and Commitment Orders to the
Federal Public Defender, CJA counsel, or privately retained counsel. Probation is
authorized to provide the Federal Public Defender a complete list, generated by
Probation from the PACTS database, of all known defendants who (1) were
assigned zero total criminal history points, or (2) received criminal history points
under U.S.S.G. § 4A1.1(d), and who are still incarcerated.
C. Decision. In making a determination whether to reduce a defendant’s sentence,
§ 1B1.10, Application Note 1(B)(ii) provides that the Court must consider: (1) the
factors set forth in 18 U.S.C. § 3553(a) and (2) the nature and seriousness of the
danger to any person or the community that may be posed by a reduction in the
defendant’s term of imprisonment. The Court may also consider defendant’s post-
sentencing conduct, i.e., his behavior in prison. Except for a sentence resulting
from a downward departure pursuant to a government motion for substantial
assistance, the Court shall not reduce the defendant’s term of imprisonment under
18 U.S.C. § 3582(c)(2) to a term that is less than the minimum of the new amended
guideline range. See U.S.S.G. § 1B1.10(b)(2)(A). When a defendant received a
sentence that was below the guideline range because of a government motion based
on substantial assistance, the court may grant a reduction that is comparably less
than the new amended guideline range. One further restriction is that the reduced
term of imprisonment cannot be less than the term of imprisonment the defendant
has already served. See U.S.S.G. § 1B1.10(b)(2)(C). If a “time served” order is
signed before February 1, 2024, the order should explicitly state that it is effective
February 1, 2024.
D. Form of Decision. Unless the presiding judge determines that a written decision
is required, motions will be resolved using form AO 247 (Order Regarding Motion
for Sentence Reduction). The presiding judge shall issue a text order, indicating
whether the motion is granted or denied. If the motion is granted, the text order will
also reflect the extent to which the sentence should be reduced. Probation will
prepare the draft AO 247 and forward the same to the presiding judge. Once the
AO 247 is filed, Probation shall provide copies of it to the Bureau of Prisons and
the Commission as soon as possible. In those cases where the presiding judge
determines that a written decision is required, a form AO 247 will still be utilized—
but the written decision will either be issued and then the AO 247 will be filed, or
the written decision may be attached to the AO 247.
E. Case Reassignment. If the presiding judge in the original proceeding is no longer
serving as a judge in this District, the Clerk is directed to reassign the case in the
manner provided in General Order 23-10 for assigning new criminal actions.
DATED: November 9, 2023
ENTERED
J J. JR., CLERK
11/9/2023
U.S. DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
