IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE: Motions for Retroactive Application of

ADMINISTRATIVE ORDER

1. On April 27, 2023, the Sentencing Commission voted to promulgate

Amendment 821 to the Sentencing Guidelines. In part, this amendment alters the

application of the Guidelines with respect to certain offenders who (a) earned criminal

history “status points” based on commission of an offense while serving a criminal

justice sentence, or (b) presented zero criminal history points at the time of sentencing.

This amendment took effect on November 1, 2023.

2. Specifically, with regard to “status points,” under U.S.S.G. § 4A1.1, a defendant

who committed the instant offense “while under any criminal justice sentence, including

probation, parole, supervised release, imprisonment, work release, or escape status,”

previously received two additional criminal history points. Amendment 821 amends

Section 4A1.1 to: (1) eliminate such status points for any defendant who otherwise has

six or fewer criminal history points; and (2) apply one point, instead of two, for

defendants who otherwise present seven or more criminal history points.

3. With regard to “zero-point offenders,” the Commission’s amendment adds a

new Section 4C1.1, which reduces by two offense levels the guideline range for

defendants with zero criminal history points. The two-level reduction, however, is not
available under this provision to a defendant if one of the nine exceptions stated in the

new guideline applies.

4. On August 24, 2023, the Commission voted to give retroactive effect to these

two changes, as of November 1, 2023, subject to disapproval by Congress. In order to

permit the orderly disposition of what is expected to be a substantial volume of motions

for sentence reductions (possibly in the tens of thousands nationwide), the Commission

decreed that while inmates will be able to file motions beginning on November 1, 2023,

under 18 U.S.C. § 3582(c)(2), seeking a reduction in sentence based on the retroactive

amendment, an individual whose request is granted by the Court may be released from

prison no earlier than February 1, 2024.

5. The Court is advised that, to facilitate the orderly review of motions for

sentence reduction in this district, and aid judicial efficiency, the United States Attorney’s

Office for this district (USAO), the Federal Community Defender Office for this district

(the “Federal Defender”), and the Probation Office for this district intend to create a

committee (“the committee”) to review the files of defendants, organized by release date,

who may be eligible for a sentence reduction, starting with those defendants who may be

released on February 1, 2024. The plan of the USAO and the Federal Defender is to

determine whether there is agreement that a defendant is eligible for a sentence reduction

and such a reduction is appropriate, and if so, to submit a proposed order to this effect,

thus significantly reducing the number of motions requiring further litigation.

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 6. The Court approves this plan, which has been employed effectively by these

parties to address the application of previous retroactive guideline amendments of wide

impact.

7. To promote the parties’ plan, this Court, pursuant to 18 U.S.C. § 3006A,

appoints the Federal Defender to represent all inmates potentially eligible for sentence

reductions under Amendment 821 to the Sentencing Guidelines for the limited purpose of

screening cases, assessing eligibility for relief, and notifying the defendants or their

counsel of the status of their cases.

8. To facilitate this review, the Probation Office is directed to produce to the

USAO and Federal Defender any list of potentially eligible inmates it may have, whether

received from the Sentencing Commission or any other source. In addition, the USAO is

directed to produce to the Federal Defender any list of potentially eligible inmates it may

have. Any list of possibly eligible inmates initially produced by the Sentencing

Commission shall be used only for purposes of identifying cases to review and shall not

be produced to any party outside the committee.

9. The Clerk’s Office shall notify the Federal Defender, via the Court’s

electronic filing system, of all future pro se motions to reduce sentence under 18 U.S.C.

§ 3582(c)(2) where such motions are clearly identifiable as seeking such relief. The

Federal Defender must provide the Clerk’s Office with an email address for delivery

of such notifications. The Clerk’s Office will make reasonable efforts to provide the

Federal Defender with a list of cases in which pro se motions to reduce sentence under

18 U.S.C. § 3582(c)(2) were filed prior to the date of this Order.

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 10. The United States Probation Office is directed to disclose to the USAO and to

the Federal Defender the judgment, statement of reasons, and presentence report of any

defendant who might be eligible for a reduction of sentence based on the retroactive

amendment, and any other relevant additional documents necessary for the review

process.

11. The Clerk’s Office is authorized to provide to the Federal Defender or

assigned defense counsel, and the USAO, upon request, electronic access to any

additional documents from a defendant’s case file that are not otherwise available

through the Public Access to Court Electronic Records (PACER) service to determine

the defendant’s eligibility and any conflicts; provided, however, that sealed documents

will only be made accessible pursuant to court order. Specifically, the Clerk’s Office

may disclose U.S.S.G. § 5K1.1 motions and orders, motions and orders related to

previous sentence reduction motions (under Fed. R. Crim. P. 35, 18 U.S.C. § 3582(c),

Section 404 of the First Step Act, or any other provision), charging documents, notices

of enhancement under 21 U.S.C. § 851, transcripts available pursuant to Judicial

Conference policy, verdicts, and motions under 28 U.S.C. § 2255. The Federal Defender

may not distribute such documents except to subsequently appointed or retained counsel,

unless otherwise ordered by the Court. Subsequently appointed or retained counsel may

not further distribute such documents, unless otherwise ordered by the Court.

12. The Federal Defender shall represent all inmates it previously represented who

may be eligible for relief. If the Federal Defender believes an inmate may be eligible for

relief whom it did not previously represent and the inmate is determined indigent, it shall

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seek appointment with a qualifying financial affidavit for each inmate whom it seeks to

represent.

13. If the Federal Defender believes that a particular defendant may be eligible for

relief but a conflict exists that prohibits its representation of the defendant, and no prior

counsel undertakes representation, the Federal Defender shall notify the assigned judge,

who will consider appointing a member of the Criminal Justice Act panel of this district.

The Federal Defender shall provide any subsequently appointed or retained counsel with

all documents it has obtained pertinent to the matter. In accordance with the policy of the

Federal Bureau of Prisons, no Presentence Investigation Reports, Modified Presentence

Investigation Reports, or Statements of Reasons shall be provided to inmates.

14. In order to allow the committee sufficient time to conduct the review process

and identify and prioritize the eligible defendants, and to arrange for the appointment of

counsel, and to avoid unnecessary litigation and waste of judicial resources, all motions

in this district based on the retroactive amendment are stayed until, and no Court will

require a response by the government to a motion for relief based on the retroactive

amendment any earlier than, January 15, 2024.

SO ORDERED, this 8th day of November , 2023.

BY THE COURT:

/s/ Juan R. Sánchez

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