W.D.N.Y. Procedures for Retroactive Application of
Parts A and B, Subpart 1 of Amendment 821
(the Criminal History Amendments)
1. Identification of Eligible Cases - The United States Sentencing Commission
(“Commission”) has provided a list of all eligible defendants who will be in prison
as of February 1, 2024. The Commission has also provided a more inclusive list
of all defendants sentenced in this District who did not receive any criminal
history points or received status points who will be in prison as of February 1,
2024.
2. Motions - The Federal Public Defender may file a motion to reduce sentence
under 18 U.S.C. ' 3582(c)(2) for any defendant it deems eligible. The Federal
Public Defender’s Office will be permitted to accept assignment of said
individuals in the absence of the filing of a financial affidavit for the purposes of
determining eligibility and filing of any motion for a reduction.
3. Scheduling Order – Upon the filing of any such motion pursuant to 18 U.S.C.
§ 3582(c)(2) by the Federal Public Defender’s Office, the Clerk’s Office will issue a
Text Order signed by the presiding judge setting forth the following deadlines:
(1) the United States Probation Office shall file on CM/ECF an Abbreviated
Supplemental Presentence Report within 30 days of the Text Order, with access
given to the Court, the United States Attorney’s Office, and the Federal Public
Defender’s Office; (2) the United States Attorney=s Office shall file a response to
the motion within 14 days of the filing of the Abbreviated Supplemental
Presentence Report; and (3) in cases where the motion is opposed, the defendant
may file a reply within 14 days of filing of any opposition papers. The form of
the Text Order is attached hereto as Exhibit A.
4. Abbreviated Supplemental Presentence Report – The Abbreviated Supplemental
Presentence Report will include the following information: (1) the former
guideline calculation and range; (2) the amended guideline calculation or criminal
history category and range; (3) the amount of time already served; and (4) the
defendant=s institutional adjustment and any public safety concerns.
5. Contested Motions – Once a contested motion is fully briefed, the motion will be
taken under advisement. Oral argument is left to the discretion of the presiding
judge.
6. Uncontested Motions - If the United States Attorney=s Office does not oppose
the motion, it will file a submission so indicating and the motion may then be
immediately taken under advisement.
7. Decision - Upon completion of briefing, the Court must determine whether and
to what extent a defendant=s sentence should be reduced. In making this
determination, ' 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.
8. 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. The
Probation Office will prepare the draft AO 247 and forward the same to the
presiding judge. Once the AO 247 is filed, the Probation Office shall provide
copies of it to the Bureau of Prisons and the U.S. Sentencing 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.
9. Identification of Pro se Motions to Reduce Sentence – It is expected that the
District will receive requests for sentencing reductions from pro se defendants.
These requests may take a variety of forms and may be sent to a variety of places.
Some will be correctly labeled as motions to reduce sentence, while others may
be labeled incorrectly or arrive as letters to the Clerk=s Office or to chambers
asking for a sentence reduction or for general information.
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Pro se correspondence 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 where it decides to represent the defendant, the Federal Public Defender=s
Office will file a Notice of Appearance and may file supplemental papers in
support of the motion. 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 Probation Office and the United States Attorney’s Office that it will not
be representing the defendant. Probation will then send chambers a proposed
order using form AO 247 setting forth the reasons for denial of the motion for
the judge=s consideration and signature. In other words, for pro se motions
where the Federal Public Defender’s Office elects not to represent the defendant,
a response will not be required from the United States Attorney’s Office nor will
an Abbreviated Supplemental Presentence Report be prepared, unless otherwise
ordered by the presiding judge.
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.
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10. Counseled Motions (other than FPD’s office). In the event that a motion is filed
on behalf of a defendant by an attorney other than the Federal Public Defender’s
Office, the procedure outlined above for preparation of an Abbreviated
Supplemental Presentence Report and response from the United States
Attorney’s Office, will generally be followed, in consultation with the presiding
judge.
11. Notice of Electronic Filing & Access - 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, the Probation Office, 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.
Designated individuals with both the United States Attorney’s Office and the
Federal Public Defender’s Office shall be granted access to the plea agreement,
judgment of conviction with statement of reasons, and any presentence
investigation report filed on CM/ECF, consistent with the Order signed by the
Chief Judge and attached hereto as Exhibit B.
12. VOSR Proceedings – For any defendant who is charged with a violation of
supervised release, in preparing the sentencing statement the United States
Probation Office shall reference the criminal history category in effect at the time
of the initial sentence, but 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.
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EXHIBIT A – STANDARD TEXT SCHEDULING ORDER
TEXT ORDER as to [name of the defendant]. The defendant has filed a Motion to Reduce
Sentence under 18 U.S.C. § 3582(c)(2).
IT IS HEREBY ORDERED, that pursuant to the District Procedures for Retroactive
Application of Parts A and B, Subpart 1 of Amendment 821 (the Criminal History
Amendments), the United States Probation Office for the Western District of New York
shall prepare an Abbreviated Supplemental Presentence Report to be filed within 30 days
of the issuance of this Text Order, and it is further
ORDERED, that the United States Attorney’s Office shall file a response to the
defendant’s motion within 14 days of the filing of the Abbreviated Supplemental
Presentence Report, either in opposition to the motion or indicating that it does not
oppose the motion, and it is further
ORDERED, that if the United States Attorney’s Office files a submission in opposition to
the defendant’s motion, the Federal Public Defender’s Office may file a reply within 14
days thereafter, and it is further
ORDERED, that oral argument will be scheduled by the Court, if necessary, by separate
order; otherwise, the motion will be taken under advisement once fully briefed.
SO ORDERED.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
IN RE: 2023 Retroactive Sentencing
Guidelines Amendments, Parts A and B, ORDER RELEASING
Subpart 1 of Amendment 821 COURT DOCUMENTS
WHEREAS, on August 24, 2023, the United States Sentencing Commission voted
to make retroactive application of Guidelines Amendment 821, Part A and Part B, Subpart
1, relating to criminal history, effective February 1, 2024, and
WHEREAS, a number of defendants previously sentenced in the Western District
of New York have been identified as potentially eligible for application of this retroactive
legislation, and
WHEREAS, potentially eligible defendants are currently incarcerated with no
significant source of income, and
WHEREAS, the Federal Defender’s Office may represent these individuals, some
of whom are not their former clients, and
WHEREAS, in order to determine whether any particular defendant is actually
eligible for relief the Federal Defender’s Office and the United States Attorney’s Office
will need access to each individual’s Presentence Investigation Report, Judgment of
Conviction with Statement of Reasons, and Plea Agreement, it is therefore
ORDERED, that the United States District Court Clerk for the Western District of
New York provide the Federal Defender’s Office and the United States Attorney’s Office
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with access to the Presentence Investigation Report, Judgment of Conviction with
Statement of Reasons, and Plea Agreement for any individual identified as potentially
eligible for such reduction, and it is further
ORDERED, that the Federal Public Defender’s Office be permitted to accept
assignment of said individuals in the absence of the filing of a financial affidavit for the
purposes of determining eligibility and filing of any motion for a reduction.
SO ORDERED.
_____________________________________
ELIZABETH A. WOLFORD
CHIEF JUDGE
UNITED STATES DISTRICT COURT
Dated: October 20, 2023
Rochester, New York
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