UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
RE: STANDING ORDER ADOPTING
ENTERED
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PROCEDURES FOR PETITIONS
SEEKING RETROACTIVE APPLICATION OF THE OCT 31 2023
2023 CRIMINAL HISTORY AMENDMENTS
RORY L PERRY 11, CLERK
U.S. o;strict Court
Southern Olstrict of West Vlr lnla
ORDER
On April 27, 2023, the United States Sentencing Commission submitted to Congress a
multi-part proposed criminal history amendment, which will be designated as Amendment 821
in Appendix C to the Guidelines Manual. 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. Subpart 1 of Part B
creates a new §4C1.1 guideline that provides a decrease of two offense levels for “Zero-Point
Offenders” (those with no criminal history points) whose offense did not involve specified
aggravating factors.
On August 24, 2023, the Commission voted to give retroactive effect to Parts A and B,
subpart 1 of the criminal history amendment. Recognizing that the courts, probation officers, and
the Bureau of Prisons would need time to process motions and prepare release plans, the
Commission also decided to require that any reduction in the term of imprisonment based on
retroactive application of Amendment 821 not be effective until February 1, 2024, or later. (See
Amendment 825 to USSG §1B1.10, effective November 1, 2023). This retroactivity produces the
opportunity for offenders to file petitions under 18 U.S.C. §3582(c)(2) seeking sentence reductions.
In addition, sentences may be reduced based upon these amendments on the motion of the court.
In either instance, an order reducing a term of imprisonment based upon retroactive application
of Amendment 821 must have an effective date of February 1, 2024, or later.
The criminal history amendment will become effective on November 1, 2023, provided
that Congress does not act before that date to reject or modify the amendment.
After due consideration by the Judges in this District, it is hereby ORDERED that the
following procedures be implemented in anticipation of the large number of these petitions that
are likely to be filed in this district:
I. IDENTIFICATION OF POTENTIALLY ELIGIBLE OFFENDERS
a. In addition to petitions filed by offenders, the United States Probation Office,
working with the Federal Public Defender, will compile a list of potentially eligible
offenders.
b. This list of petitioning offenders and others who may be eligible will be given to
the Chief Judge, who will divide the list and forward it to the respective District
Judges to whom the cases will be assigned.
c. For each offender, the Probation Office will prepare the following materials and
forward them to both the District Judge and the United States Attorney’s Office:
1. The original Presentence Investigation Report;
2. The original Judgment and Commitment Order and Statement of Reasons;
3. The plea agreement, if any; and
4. An addendum to the Presentence Investigation Report providing an
analysis of the offender’s eligibility for consideration for a reduction, a
summary of the available information on the conduct of the offender while
incarcerated, and a recalculation of the applicable guidelines pursuant to
the criminal history amendments.
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II. DESIGNATION OF OFFENDERS FOR EXPEDITED CONSIDERATION
The District Judge will review the materials provided by the Probation Office to determine
which cases should be designated for Expedited consideration. Expedited consideration may be
given to any offender. If the offender is not given Expedited consideration, the case may proceed
to the Standard procedure.
III. EXPEDITED CONSIDERATION
a. If the District Judge designates a case (or list of cases) for Expedited consideration,
the District Judge will enter the form order notifying the United States Attorney’s
Office of its designation and giving the United States Attorney’s Office seven
calendar days, excluding federal holidays, to raise any objection to a reduction.
b. If the United States Attorney’s Office objects, the District Judge may:
1. Overrule the objection and proceed with Expedited consideration; or
2. Refer the case to the Standard procedure.
c. If no objection is asserted, the District Judge will proceed to consider the
appropriate factors under 18 U.S.C. §3553(a), as consistent with Section 3582(c)(2),
as well as public safety.
d. The District Judge may then either enter the form order granting the full reduction
and lowering the sentence to the bottom of the new guideline range or refer the
case to the Standard procedure.
e. Counsel is not appointed under the Expedited procedure.
f. A District Judge may refer any case to the Standard procedure at any point during
Expedited consideration.
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IV. STANDARD PROCEDURE
a. If a case enters the Standard procedure, and the District Judge finds that the
offender is not eligible for a reduction, the proceeding ends and the petition, if any,
is dismissed.
b. If the offender appears to be eligible, the District Judge may order the Federal
Public Defender to undertake the representation of the offender or appoint
counsel. The District Judge may order the parties to submit memoranda on the
issues of whether a reduction should be given, and if so, how much of a reduction.
The District Judge may also conduct a hearing. Offenders may appear by
videoconference when it is feasible.
c. The District Judge, after consideration of the appropriate factors under 18 U.S.C.
§3553(a), as consistent with Section 3582(c)(2), as well as public safety, will either
deny the petition or reduction or enter the form order granting the appropriate
reduction.
d. At any time throughout this Standard procedure, the parties may propose an
agreed resolution of the case.
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V. FORM ORDERS
Form orders approved by the District Court are attached to this Order to simplify and
streamline the handling of these cases. Additionally, form order A0-247 is available for the
District Court’s use.
ENTERED: October 31, 2023
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
David A. Faber
Senior United States District Judge
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[ORDER DESIGNATING EXPEDITED TRACK]
[Pending before the Court is a motion, brought pursuant to 18 U.S.C. §3582(c)(2), to reduce
Defendant’s sentence based on a subsequent reduction in the applicable sentencing guideline.]
[Pursuant to Standing Order entered _________, xx, 2023, the Court has instituted review of
sentence in this matter upon its own motion.] On November 1, 2023, a multi-part criminal history
amendment designated as Amendment 821 in Appendix C to the Guidelines Manual became
effective. 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. Subpart 1 of Part B creates a new §4C1.1 guideline that
provides a decrease of two offense levels for “Zero-Point Offenders” (those with no criminal
history points) whose offense did not involve specified aggravating factors. Parts A and B,
subpart 1 of the criminal history amendment both have retroactive effect. Recognizing that the
courts, probation officers, and the Bureau of Prisons would need time to process motions and
prepare release plans, the Commission also decided to require that any reduction in the term of
imprisonment based on retroactive application of Amendment 821 not be effective until February
1, 2024, or later. (See Amendment 825 to USSG §1B1.10, effective November 1, 2023). Accordingly,
an order reducing a term of imprisonment based upon retroactive application of Amendment 821
must have an effective date of February 1, 2024, or later.
Pursuant to a Standing Order entered on _________________ XX, 2023, the Court, in
consultation with the United States Probation Office, has designated this Defendant for Expedited
consideration.
The United States Attorney’s Office is ORDERED to file any objection to a sentence
reduction for this Defendant within seven days of entry of this Order. The Clerk is DIRECTED
to send a copy of this Order to Defendant [and counsel], the United States Attorney, and the
United States Probation Office.
ENTER: [DATE]
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[ORDER DESIGNATING STANDARD TRACK]
[Pending before the Court is a motion, brought pursuant to 18 U.S.C. §3582(c)(2), to reduce
Defendant’s sentence based on a subsequent reduction in the applicable sentencing guideline.]
[Pursuant to Standing Order entered _________, xx, 2023, the Court has instituted review of
sentence in this matter upon its own motion.] On November 1, 2023, a multi-part criminal history
amendment designated as Amendment 821 in Appendix C to the Guidelines Manual became
effective. 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. Subpart 1 of Part B creates a new §4C1.1 guideline that
provides a decrease of two offense levels for “Zero-Point Offenders” (those with no criminal
history points) whose offense did not involve specified aggravating factors. Parts A and B,
subpart 1 of the criminal history amendment both have retroactive effect. Recognizing that the
courts, probation officers, and the Bureau of Prisons would need time to process motions and
prepare release plans, the Commission also decided to require that any reduction in the term of
imprisonment based on retroactive application of Amendment 821 not be effective until February
1, 2024, or later. (See Amendment 825 to USSG §1B1.10, effective November 1, 2023). Accordingly,
an order reducing a term of imprisonment based upon retroactive application of Amendment 821
must have an effective date of February 1, 2024, or later.
Pursuant to a Standing Order entered on _______________ xx, 2023, the court DIRECTS
that this matter proceed under the Standard Procedure, and DIRECTS that the Federal Public
Defender undertake the representation of Defendant or seek the appointment of counsel.
The court further DIRECTS that, within ten days of the entry of this Order, the United
States and Defendant file written memoranda addressing all relevant issues, including eligibility,
whether Defendant should receive a reduction, and, if so, the extent of any reduction.
The Clerk is DIRECTED to send a copy of this Order to the Federal Public Defender,
Defendant [and counsel], the United States Attorney, and the United States Probation Office.
ENTER: [DATE]
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MEMORANDUM OPINION AND JUDGMENT ORDER
[Pending before the Court is a motion, brought pursuant to 18 U.S.C. §3582(c)(2), to reduce
Defendant’s sentence based on a subsequent reduction in the applicable sentencing guideline.]
[Pursuant to Standing Order entered _________, xx, 2023, the Court instituted review of sentence
in this matter upon its own motion.] On November 1, 2023, a multi-part criminal history
amendment designated as Amendment 821 in Appendix C to the Guidelines Manual became
effective. 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. Subpart 1 of Part B creates a new §4C1.1 guideline that
provides a decrease of two offense levels for “Zero-Point Offenders” (those with no criminal
history points) whose offense did not involve specified aggravating factors. Parts A and B,
subpart 1 of the criminal history amendment both have retroactive effect. Recognizing that the
courts, probation officers, and the Bureau of Prisons would need time to process motions and
prepare release plans, the Commission also decided to require that any reduction in the term of
imprisonment based on retroactive application of Amendment 821 not be effective until February
1, 2024, or later. (See Amendment 825 to USSG §1B1.10, effective November 1, 2023). Accordingly,
an order reducing a term of imprisonment based upon retroactive application of Amendment 821
must have an effective date of February 1, 2024, or later. By previous Order entered on
__________________ xx, 2023, this case was designated for [Expedited/Standard] consideration
pursuant to this Court’s Standing Order Adopting Procedures for Petitions Seeking Retroactive
Application of the 2023 Criminal History Amendments.
The Court has received and considered the original Presentence Investigation Report
(PSI), original Judgment and Commitment Order and Statement of Reasons, [plea agreement,]
and addendum to the PSI from the Probation Office, [conducted a hearing on [DATE],] and
received any materials submitted by the parties on this issue. The Court has also considered the
applicable factors under 18 U.S.C. § 3553(a), consistent with§ 3582(c)(2), and public safety.
[By its written and filed response, the United States does not object to the reduction
ordered herein.]
[INSERT FINDINGS]
Based on the foregoing considerations, the Motion is GRANTED. [The Court ORDERS
that Defendant’s Criminal History Category be reduced from Category ___ to Category ___, for
a new advisory guideline range of ___ months to ___ months.] [ The Court ORDERS that the
defendant’s Total Offense Level be reduced by two levels, resulting in a new Total Offense Level
of ___, for a new advisory guideline range of ___ months to ___ months.] It is further ORDERED
that Defendant’s previous sentence be reduced to a period of _____ months, with credit for time
served to date, effective _____________. This Order is subject to the prohibition contained within
U.S.S.G. §1B1.10(b)(2)(C). Except as otherwise provided, all provisions of the judgment entered
[insert previous judgment date] shall remain in effect.
The Court DIRECTS the Clerk to send a copy of this Order to Defendant and counsel, the
United States Attorney, the United States Probation Office, and the United States Marshals.
ENTER: [DATE]
EFFECTIVE: [DATE]
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
[--] DIVISION
[--],
Movant,
v. CIVIL ACTION NO.[--]
(Criminal Action No.[--])
UNITED STATES OF AMERICA,
Respondent.
ORDER
Pending is Movant’s motion pursuant to 28 U.S.C. §2255. The Court ORDERS as follows:
The civil action is DISMISSED and STRICKEN from the docket. The Clerk is
directed to re-docket the motion in the original criminal case as one seeking relief
under Section 3582(c) based upon the recent criminal history amendments. The re-
characterized motion will be resolved by the undersigned within the original
criminal case.
The Court withdraws reference from the magistrate judge of that portion of the
motion seeking relief under Section 3582(c) based upon the recent criminal history
amendments. Aside from this limited withdrawal, the previously entered referral
order regarding the 2255 motion shall remain in full force and effect. In order to
facilitate the just and speedy resolution of the re-characterized portion of the
section 2255 motion, the Clerk is directed to re-docket the motion in the original
criminal case to reflect that a Section 3582(c) motion has been filed based upon the
recent criminal history amendment, and the re-characterized motion will be
resolved by the undersigned within the original criminal case.
The Clerk is DIRECTED to send a copy of this Order to counsel of record, the United
States Probation Officer, the United States Attorney, and any unrepresented parties.
ENTER: [DATE]
