08-019
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
PROCEDURES FOR HANDLING MOTIONS FOR
SENTENCING MODIFICATIONS UNDER 18 U.S.C. § 3582(c)(2)
This memorandum sets forth the procedures adopted by the United States District
Court for the Western District of Michigan for consideration of motions by defendants for sentence
modifications arising from Amendments 706 and 711 of the United States Sentencing Guidelines.
These amendments, effective March 3, 2008, retroactively modified the Drug Quantity Table with
regard to cocaine base (crack cocaine). These procedures are intended to govern the expeditious
handling of motions for sentence modification in the majority of cases; an individual judge,
however, is free to alter these procedures to address the circumstances of any particular case.
As used in this memorandum, an eligible defendant means: (1) a person serving a
term of imprisonment under a criminal judgment issued by this court; (2) whose sentencing
guideline offense level was computed in whole or in part by reference to a quantity of crack cocaine;
and (3) whose guideline range is lowered by application of Amendments 706 and 711 of the U.S.
Sentencing Guidelines.
I. FORM AND FILING OF MOTIONS
A. Form of Motions
Motions must be filed on the court-approved form. No memorandum
of law or attachments may accompany the motion. Non-conforming
motions will be returned to the submitting party by order of court.
B. Filing of Motion
1. By the Federal Defender -
a. E-filed, with a copy automatically sent by CM/ECF to
the U.S. Attorney’s Office;
b. The motion will include a request for appointment of
FPD and financial affidavit.
2. By a panel attorney who represented defendant at sentencing or on
appeal -
a. E-filed, with a copy automatically sent by CM/ECF to
the U.S. Attorney’s Office;
b. The motion will include a request for appointment of
the panel attorney and financial affidavit.
3. By retained counsel - E-filed, with a copy automatically sent by
CM/ECF to the U.S. Attorney’s Office.
4. By a pro se defendant -
a. Filed on paper and scanned into the CM/ECF system,
with a copy automatically sent by CM/ECF to the
U.S. Attorney’s Office;
b. May request appointment of counsel in body of the
form motion.
C. Appointment of Counsel
Appointment of counsel is discretionary with the court at any stage of the
proceedings.
II. INITIAL CONSIDERATION
A. Initial Review
1. Immediately upon filing, the judge’s office will review the motion to
determine whether the defendant has been previously identified by
the Sentencing Commission or the Administrative Office as an
inmate potentially affected by Amendments 706 and 711.
a. If so, the court will move to Step B.
b. If not, the case will be referred to Probation for a
review of the file, to determine whether the movant is
an eligible defendant. This report should be filed
within 7 business days, unless the Probation Office
file is in storage.
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c. The Probation Office will file a short report, which
will be served on the parties, stating whether or not
the movant appears to be an eligible defendant and
the basis for that conclusion. Any party objecting to
the conclusion of the Probation Office must file the
objection within 14 days of service.
2. If the defendant is clearly ineligible, the court may dismiss the
motion. If the court determines that the movant may be an eligible
defendant, the court will move to Step B.
B. Triage of Motions
1. Motions by potentially eligible defendants with release dates before
January 1, 2012, will receive priority, and the court will immediately
move to Step C.
2. Motions by potentially eligible defendants with release dates on and
after January 1, 2012, will be held in abeyance. The court will reach
those motions, moving to Step C, as more urgent cases are decided.
C. Issuance of Order for Sentence Modification Report
1. The court will order the Probation Office to prepare a Sentence
Modification Report, addressing the following issues:
a. a brief procedural history of sentencing decisions,
including whether the original sentence was imposed
pursuant to Booker, reflected any departures or
variances, or was reduced under U.S.S.G. § 5K1.1 or
Rule 35(b);
b. the original Guideline calculation and a recalculation
of the Guideline range in accordance with U.S.S.G. §
1B1.10(b)(1);
c. a statement whether the movant is an eligible
defendant and the basis for that conclusion;
d. any information readily available to Probation from
the BOP concerning defendant’s post-sentencing
conduct or misconduct;
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e. any information available to Probation concerning the
danger to any person or the community that may be
posed by a reduction in defendant’s sentence;
f. a recommendation for disposition of the motion.
2. The U.S. Probation Office will be directed to prepare Sentence
Modification Reports in a sequence consistent with projected release
dates of the moving defendants, assuring those defendants eligible for
imminent release are addressed first by the Court. Once all requested
reports for inmates with projected release dates before January 1,
2012, are submitted to the Court, the U.S. Probation Office will
prepare reports for moving defendants with release dates on or after
January 1, 2012, in a sequence reflecting their projected release dates.
3. Upon request, the Probation Office will provide a copy of the original
Presentence Investigation Report to either party.
D. Submissions by the Parties
1. Defendant (or counsel) will have 21 days after service of the
Sentence Modification Report to file a brief and supporting
documents, addressing any legal or factual issue relevant to the
motion for reduction of sentence.
2. Within 21 days of service of defendant’s brief, the Government may
file its brief and supporting materials, addressed to the same subjects.
3. Submissions in support of or in opposition to a motion must not
exceed 20 pages, including attachments.
4. At any time before a decision on the motion, the parties may file with
the court a joint recommendation for disposition of the motion,
understanding that the ultimate decision is in the court’s discretion.
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E. Hearing
A hearing will be scheduled only if the court determines that a genuine issue
of material fact must be resolved or that oral argument will be beneficial to
the court. A defendant’s presence for sentence modification is not required
by the Federal Rules of Criminal Procedure. FED. R. CRIM. P. 43(b)(4). If
either party seeks a hearing or defendant’s personal presence, the party’s
brief must specifically request such relief and give reasons in support.
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
_________________________
UNITED STATES OF AMERICA,
File No. _________________________
Plaintiff,
Hon. ___________________________
v.
____________________________,
Defendant.
Motion for Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2)
Defendant, through his counsel, hereby requests a modification or reduction of sentence
pursuant to 18 U.S.C. § 3582(c)(2) and Amendments 706 and 711 to the United States Sentencing
Guidelines, which made a reduction in the base offense level for crack-cocaine offenses retroactive as
of March 3, 2008. In support of this motion, defendant states as follows:
1. I am serving a term of imprisonment.
2. My sentence was based, at least in part, on crack cocaine. ___________ (Yes or No)
3. I was sentenced in the Western District of Michigan on _______________ (date) to a
term of _________ months in prison. My total offense level was ________ and my
criminal history category was ________.
4. My projected release date is _____________________.
5. I hereby request a court-appointed attorney. ___________ (Yes or No)
If yes, please complete the Financial Affidavit available on the Court's website at
www.miwd.uscourts.gov. (Note: appointment of counsel is discretionary with the Court.)
PLEASE DO NOT ATTACH ANY OTHER MATERIALS AT THIS TIME OR YOUR MOTION WILL BE REJECTED
AND RETURNED. IF APPLICABLE, SUBMIT THE FINANCIAL AFFIDAVIT TO THE COURT ON PAPER.
___________________________________ Date: ________________________
Counsel for Petitioner
Name: _________________________________________________
Address: _______________________________________________________________________
Telephone Number: ____________________ Email Address:_________________________
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
_________________________
UNITED STATES OF AMERICA,
File No. _____________________
Plaintiff,
Hon. ________________________
v.
____________________________,
Defendant.
Motion for Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2)
I hereby request a modification or reduction of my sentence pursuant to 18 U.S.C. § 3582(c)(2)
and Amendments 706 and 711 to the United States Sentencing Guidelines, which made a reduction in
the base offense level for crack-cocaine offenses retroactive as of March 3, 2008, and in support of my
motion state as follows:
1. I am serving a term of imprisonment.
2. My sentence was based, at least in part, on crack cocaine. ___________ (Yes or No)
3. I was sentenced in the Western District of Michigan on _______________ (date) to a
term of _________ months in prison. My total offense level was ________ and my
criminal history category was ________.
4. My projected release date is _____________________.
5. I hereby request a court-appointed attorney. ___________ (Yes or No)
If yes, please complete the attached Financial Affidavit.
(Note: appointment of counsel is discretionary with the Court)
WITH THE EXCEPTION OF THE FINANCIAL AFFIDAVIT, PLEASE DO NOT SUBMIT OR ATTACH ANY
OTHER MATERIALS AT THIS TIME OR YOUR MOTION WILL BE REJECTED AND RETURNED.
Signature of Petitioner: __________________________ Date: ________________________
Print or Type Name: __________________________ Register #: ____________________
Current Address: _______________________________________________________________
