UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
IN THE MATTER OF MOTIONS FOR
MODIFICATION UNDER 18 U.S.C.
Administrative Order No. 23-MS-102
§ 3582(c)(2) (AMENDMENT 821)
___________________________________/
The district judges of this court have adopted guidelines for the handling of motions for
sentence modification under 18 U.S.C. § 3582(c)(2), arising from the retroactive application of
Amendment 821 of the Federal Sentencing Guidelines. A copy of the procedure adopted by the
court is attached to this order, along with copies of form motions to be used in such cases. All
attorneys and pro se parties filing such motions must adhere to the attached procedures, unless a
judge of this court orders an exception in a particular case.
The Clerk is directed to make these materials available to the public on the court’s website
and at the Clerk's divisional offices.
FOR THE COURT:
Dated: November 1, 2023
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
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)
(AMENDMENT 821)
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 Amendment 821 of the United States Sentencing Guidelines. This
amendment, effective November 1, 2023, made two retroactive changes.
Part A of the amendment addresses “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.
Part B creates a new §4C1.1 guideline that provides a decrease of two offense levels
for “Zero-Point Offenders” (no criminal history points) whose offense did not involve
specific aggravating factors. The amendment revises the Commentary to §5C1.1 to
provide guidance regarding the appropriateness of a sentence other than prison for
certain first offenders.
The following 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. The Amendment does not authorize
release of any defendant before February 1, 2024.
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 Motions
1. By the Federal Public Defender (FPD):
a. The motion shall be 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 FPD and
financial affidavit. The financial affidavit must be e-filed separately, with
access restricted to the filer and the Court.
2. By a panel attorney who represented the defendant at sentencing or on appeal:
a. The motion shall be 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. The financial affidavit must be e-filed separately,
with access restricted to the filer and the Court.
3. By retained counsel: The motion shall be e-filed, with a copy automatically
sent by CM/ECF to the U.S. Attorney’s Office.
4. By a pro se defendant:
a. The motion shall be filed with the Court 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. The motion may request appointment of counsel in the body of the form
motion. If counsel is requested, the defendant should also submit a
completed financial affidavit. The clerk’s office shall only file any
submitted financial affidavit with access restricted to the defendant and the
Court.
C. Appointment of Counsel: Appointment of counsel is discretionary with the Court
at any stage of the proceedings.
II. Initial Consideration
A. Initial Review (Step A)
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 Amendment 821.
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 may be an eligible defendant.
c. The Probation Office will file a short report stating whether the movant
may be an eligible defendant because the Final PSR assessed status points
or treated movant as a Zero-Point Offender. The Probation Office will not
make any other potential eligibility assessment at this step. The Probation
Office will e-file the report. This report should be submitted within seven
business days, unless the Probation Office file is in storage. Pro se
movants must be served by mail, with proof of service.
2. If the Probation Office report concludes that movant may be eligible, the
Court will move to Step B.
3. If the Probation Office report concludes that movant does not appear to be
eligible, any represented movant may file an objection within 14 days of
service, and any pro se movant may file an objection within 21 days of
service.
4. If the Court determines that the movant may be an eligible defendant, the
Court will move to Step B.
5. The Court may at any time deny the motion if the Court determines the
movant is not eligible for relief.
B. Triage of Motions (Step B)
1. Motions by potentially eligible defendants with a release date within 12
months of February 1, 2024—the earliest possible release date under the
Amendment—will receive priority, and the Court will immediately move to
Step C.
2. Motions by potentially eligible defendants with release dates after February 1,
2025, will be held in abeyance. The Court will reach those motions, moving to
Step C, after more urgent cases are decided.
C. Issuance of Order for Sentence Modification Report (Step C)
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 reflected any departures or variances, or was reduced
under U.S.S.G. § 5K1.1 or Rule 35(b);
b. the original Guideline range calculation (including criminal history points
and category) and a recalculation of the Guideline range (including
criminal history points and category) in accordance with the Amendment;
c. a statement as to whether the movant is an eligible defendant and the basis
for that conclusion;
d. a statement as to whether the movant received credit in anticipation of
Amendment 821 based on a variance;
e. any information readily available to Probation from the BOP concerning
the defendant’s post-sentencing conduct or misconduct;
f. any information available to Probation concerning the danger to any
person or the community that may be posed by a reduction in the
defendant’s sentence; and
g. 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 within 12 months of February 1, 2024, are submitted to
the Court, the U.S. Probation Office will prepare reports for moving
defendants with release dates after February 1, 2025, in a sequence reflecting
their projected release dates.
3. The Probation Office will e-file the Sentence Modification Report (access
restricted to the Court, the U.S. Attorney, and counsel for movant).
4. The Probation Office will e-file the original Presentence Report (access
restricted to the Court, the U.S. Attorney, and counsel for movant), if not
already on the docket.
5. The Clerk’s Office will serve the order on pro se movants by mail.
D. Submission 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. Counsel must e-file these documents and serve
any pro se movant by mail, with proof of service.
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.
E. Hearing
1. A hearing will be scheduled only if the Court determines that it is necessary to
resolution of the motion.
2. A defendant’s presence for sentence modification is not required by the
Federal Rules of Criminal Procedure. Fed. R. Crim. P. 43(b)(4).
3. If either party seeks a hearing or defendant’s personal presence, the party’s
brief must specifically request that relief and give reasons in support.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA,
Case No. _____________________
Plaintiff,
Hon. ________________________
v.
____________________________,
Defendant.
Motion for Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2)
(Guideline Amendment No. 821)
Defendant, through counsel, hereby requests a modification or reduction of sentence
pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 821 to the United States Sentencing
Guidelines. First, Amendment 821 decreases “Status Points” by one point for defendants with
seven or more criminal history points and eliminated “Status Points” for defendants with six or
fewer criminal history points. “Status Points” are those points that were applied under then-United
States Sentencing Guideline (U.S.S.G.) § 4A1.1(d) if the defendant committed his or her federal
offense while on probation, parole, supervised release, imprisonment, work release, or escape
status. Second, Amendment 821 provides for a decrease of two offense levels for “Zero-Point
Offenders” (no criminal history points), whose offense did not involve specific aggravating
factors. The change is retroactive as of November 1, 2023, and has an effective date of February
1, 2024.
In support of this motion, Defendant states as follows:
1. I am serving a term of imprisonment.
2. My presentence report:
included “Status Points” in the calculation of my criminal history score under
then-U.S.S.G. § 4A1.1(d).
scored me as having zero criminal history points.
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 that the undersigned be appointed as my attorney at no cost to me.
If requesting counsel, in support of my request, I have completed a Financial Affidavit,
which will be e-filed separately under restricted access. (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, FILE THE FINANCIAL AFFIDAVIT SEPARATELY
WITH THE COURT WITH ACCESS RESTRICTED TO THE DEFENDANT AND THE COURT.
____________________________________ Date: _________________________
Counsel for Petitioner
Name: ________________________________________________________________________
Address: ______________________________________________________________________
Telephone: ________________________ Email address: _____________________________
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA,
Case No. _____________________
Plaintiff,
Hon. ________________________
v.
____________________________,
Defendant.
Motion for Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2)
(Guideline Amendment No. 821)
I hereby request a modification or reduction of my sentence pursuant to 18 U.S.C. §
3582(c)(2) and Amendment 821 to the United States Sentencing Guidelines. First, Amendment
821 decreases “Status Points” by one point for defendants with seven or more criminal history
points and eliminated “Status Points” for defendants with six or fewer criminal history points.
“Status Points” are those points that were applied under then-United States Sentencing Guideline
(U.S.S.G.) § 4A1.1(d) if the defendant committed his or her federal offense while on probation,
parole, supervised release, imprisonment, work release, or escape status. Second, Amendment 821
provides for a decrease of two offense levels for “Zero-Point Offenders” (no criminal history
points), whose offense did not involve specific aggravating factors. The change is retroactive as of
November 1, 2023, and has an effective date of February 1, 2024.
In support of this motion, I state as follows:
1. I am serving a term of imprisonment.
2. My presentence report:
included “Status Points” in the calculation of my criminal history score under
then-U.S.S.G. §4A1.1(d).
scored me as having zero criminal history points.
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 ________________. I understand that the Amendment
does not authorize release of any defendant before February 1, 2024.
5. □ I hereby request a court-appointed attorney. In support of my request, I have
completed the enclosed 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: _______________________________________________________________
