10/31/23
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
STANDING ORDER No. BMM-27
In Re: Retroactive Application
of Amendment 821.
Effective November 1, 2023, the United States Sentencing Commission has
determined that the targeted changes to the criminal history rules made in Parts A
and B, Subpart 1 of Amendment 821 to the United States Sentencing Guidelines
should be applied retroactively. See U.S.S.G. Ret. App. A & B, Sub. 1 Amendment
821 “Reasons for Amendment” (Nov. 1, 2023), available at https://www.ussc.gov/
guidelines/amendments/retroactivity-amendment-effective-november-1-2023.
Consequently, defendants who received additional status points for committing the
instant offense while under any criminal justice sentence, see §4A1.1, as well as
certain “zero-point offenders” whose offense did not involve specified aggravating
factors, may be entitled to a sentence reduction under 18 U.S.C. § 3582(c)(2).
The Commission’s purpose in enacting Amendment 821 is to balance its
mission of implementing data-driven sentencing policies with its duty to craft
penalties that reflect the statutory purposes of sentencing and to reflect
“advancement in knowledge of human behavior as it relates to the criminal justice
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process.” See 28 U.S.C. § 991(b). The Commission determined that the policy
reasons underlying the prospective application of the amendment apply with equal
force to individuals who have already been sentenced. In addition, while
recognizing that applying Amendment 821 retroactively could result in an
increased administrative burden, any such burden is manageable.
For many defendants, the reduction may result in earlier release from
confinement. But some defendants who may be eligible for a reduced sentence
may not be capable of filing pro se or may find the attempt to file difficult. These
defendants may file their motions too late to benefit from Amendment 821’s
retroactive application – or not at all. To the extent that eligible defendants are not
heard because they are unable to obtain professional assistance in filing, the core
purpose of Amendment 821 is frustrated by the defendant’s indigency. Conversely,
defendants who are capable of filing pro se may not understand the requirements
for eligibility and so may impede the Court’s efforts to address the motions of the
large number of defendants who are eligible.
Consequently, the judges of the District of Montana find that the interests of
fairness and judicial efficiency, as well as the purpose of the retroactive application
of Amendment 821, will be materially advanced by the appointment of counsel to
represent indigent defendants who are potentially eligible for a sentence reduction
under the Amendment. 18 U.S.C. § 3006A(a)(1)(I), (a)(2).
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Accordingly, IT IS HEREBY ORDERED as follows:
1. Any case in which a motion seeking retroactive application of
Amendment 821 is filed that was previously assigned to United States District
Judges Jack D. Shanstrom, Richard F. Cebull, Charles C. Lovell, or Sam E.
Haddon, or assigned to a visiting judge, will be reassigned to United States District
Judges Dana L. Christensen, Brian M. Morris, or Susan P. Watters.
2. As to all motions containing a claim for sentence reduction under 18
U.S.C. § 3582(c)(2) and Amendment 821, D. Mont. L.R. CR 47.2 is
SUSPENDED.
3. Should any motion under 28 U.S.C. § 2255 also contain a request for
sentence reduction under Amendment 821, the Rules Governing § 2255
proceedings apply, and this Order does not. Should any motion seeking
compassionate release under 18 U.S.C. § 3582(C)(1)(A) also contain a request for
sentence reduction under Amendment 821, Standing Order BMM-13 applies, and
this Order does not.
4. Any deadline falling on November 24, 2023, is EXTENDED to the
Monday following the deadline.
5. Provided the defendant was represented at sentencing by counsel
appointed under the Criminal Justice Act, counsel will be appointed to represent
each defendant identified by the Sentencing Commission as potentially eligible for
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a sentence reduction under Amendment 821, see Attachment A, and each currently
incarcerated defendant convicted in this court who files a pro se motion for
sentence reduction under Amendment 821.
6. The attorney who represented a qualified defendant at the time of
sentencing shall promptly determine whether any conflict arising after sentencing
precludes representing the defendant with respect to a potential sentence reduction
under 18 U.S.C. § 3582(c)(2) and Amendment 821. If a conflict exists, or if
sentencing counsel is no longer available, counsel shall contact the Federal
Defenders of Montana, who shall locate new, conflict-free counsel to represent the
defendant.
7. When conflict-free counsel has been located, that person shall file a
Notice of Appearance. Counsel’s appointment under the Criminal Justice Act and
under the terms of this Order will commence on that date. The scope of counsel’s
appointment under the terms of this Order is limited to a motion under 18 U.S.C.
§ 3582(c)(2). The case compensation maximum is $2,700 at a rate of $164.00 per
hour. CJA Guidelines §§ 230.16(a), -23.20(i). The Clerk shall ensure the
Judgment, the Statement of Reasons, the Presentence Report, any plea agreement,
and any motion(s) under U.S.S.G. § 5K1.1 or Fed. R. Crim. P. 35(b), including any
judgment(s), motion(s), letter(s), or informal objection(s) made under seal, are
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filed in the electronic docket, and shall provide access to counsel for the United
States and counsel for the Defendant.
8. Counsel shall review the file and contact the defendant regarding the
defendant’s eligibility for relief under Amendment 821 and counsel’s availability
to act for the defendant. If authorized by the defendant, counsel shall represent the
defendant in any proceeding under Amendment 821.
9. The parties are not to rely upon Local Rule CR 49.3(a)(2)(E) to file
motions or briefs under seal unless the document in question refers to assistance
provided by the defendant.
10. If after consultation with counsel a defendant chooses to proceed pro se,
counsel shall file a notice to that effect. Counsel’s appointment shall terminate on
filing of such notice. Otherwise, counsel’s appointment shall continue through
disposition of the motion and, if taken, any appeal.
11. The Federal Defenders of Montana are authorized to contact listed
defendants who were not represented by appointed counsel at sentencing to advise
them of the potential availability of counsel under the terms of this Order on a
proper showing of indigency in a motion to the Court. Defendants who wish to
have counsel appointed to represent them must complete a financial affidavit
(Form CJA-23) and must request appointment of counsel.
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12. To conserve the resources of the Probation Office, the Court will review
each motion filed to determine whether the defendant is clearly ineligible for a
sentence reduction. This review is intended only to screen out those defendants
who are clearly ineligible for the reduction. Review will be completed within 21
days or less.
13. When review is completed, the Probation Office will be notified, and a
“Remark” will be made in the docket. Proceedings on the motion will follow this
schedule:
a. Upon receipt of notice, the Probation Office will have 30 days to
complete a draft addendum to the Presentence Report, including a
new calculation of the guideline range and the information described
in U.S.S.G. §1B1.10 Application Note 7.
b. When it is completed, the draft addendum and Bureau of Prisons
records will be shared with the parties, who will have seven days to
attempt to resolve any objections.
c. The final presentence report addendum will be completed within
seven additional days.
d. Within seven days of receipt of the final presentence report
addendum, the parties shall file briefs stating their positions as to the
defendant’s eligibility for the reduction; whether a reduction should
be made; and, if so, the extent of the reduction.
e. Unless the presiding judge sets a hearing, the matter will be decided
on the briefs.
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14. The presiding judge may rule on the motion at any time. The parties
may at any time submit a joint stipulation that a sentence reduction is appropriate
and that a reduction should be made to an agreed sentence.
15. The Clerk’s Office and the Federal Defenders of Montana shall take all
necessary measures to implement this Order.
16. This Order is effective upon filing and applies to pending motions under
18 U.S.C. § 3582(c)(2) and Amendment 821.
DATED this 31st day of October, 2023.
Brian Morris, Chief Judge
United States District Court
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