Requesting Resentencing: Options Under Amendment 821 Retroactivity

Hey there! I wanted to write this article to help explain the recent changes to federal sentencing guidelines under Amendment 821 and what it could mean for people currently incarcerated in federal prisons. This stuff can be really confusing, even for lawyers, so I’ll try to break it down in simple terms.

Back in August 2023, the U.S. Sentencing Commission voted to make Amendment 821 retroactive. This means some folks serving time under the old guidelines could get their sentences reduced. But it’s not automatic – they have to go through a process to get it.

What does “retroactive” mean?

When the Commission changes the guidelines for how federal sentences get calculated, those changes are usually only for future cases. Making a change “retroactive” means it can apply to cases that have already been decided in the past.

So by making Amendment 821 retroactive, the Commission is saying that people who were already sentenced before this change can now ask the courts to re-sentence them under the new rules.

What does Amendment 821 do?

In simple terms, Amendment 821 changes how criminal history points are calculated under the US Sentencing Guidelines. Specifically, it creates a new provision that allows a 2-level decrease in the offense level for defendants who received zero criminal history points under the guidelines, and whose crime did not involve certain aggravating factors.

The bottom line is that we are now going to see some people qualify for lower sentences based on having less criminal history than we previously thought. It’s a big deal.

Who can get a reduced sentence?

To get a reduction under the retroactive part of Amendment 821, you have to meet a few conditions:

• You must already be serving a sentence for a federal crime.
• That sentence must have been final on or before August 24, 2023 (the day the amendment was made retroactive).
• You have to qualify based on the changes to criminal history calculations in Amendment 821.

The Sentencing Commission estimates around 11,000 people could be eligible for reductions. But remember – even if you qualify, the reduction is not automatic. You have to file a motion with the court.

When can people start applying?

The Commission said there will be a delayed start date of November 1, 2023 for people to start filing motions based on Amendment 821 retroactivity. The delay gives the courts some time to prepare.

What’s the process?

If you meet the eligibility criteria, here are the steps to go through:

1. On or after November 1, 2023, you can file a motion in the federal court that handled your original sentencing.
2. The motion asks the court to re-sentence you under the retroactive part of Amendment 821.
3. The court will review your criminal history points and see if you qualify for a lower range.
4. If you do qualify, the court has discretion whether or not to reduce your sentence.
5. If the court grants a reduction, they will issue a new sentence order with the lower term.

One important thing – the court can only reduce your sentence based on the specific changes in Amendment 821. They don’t get to re-do your whole case.

When will people be released if they get a reduction?

Here’s the thing… even if the court grants your motion and orders a lower sentence, you don’t get released right away. There is a delayed release date of February 1, 2024 for any reduced sentences under Amendment 821 retroactivity.

So the earliest anyone could actually get out of prison based on this change is February 1st, 2024. That delayed release date was set by the Commission to give the system time to process all the applications.

What about supervised release?

For people who get a reduced prison sentence, the court can also lower your supervised release term under Amendment 821 retroactivity. But it doesn’t have to.

The court looks at factors like your history and characteristics, seriousness of the offense, deterrence, and public safety. Then they decide if you should get a lower supervised release term along with the reduced prison sentence.

Will everyone who qualifies get a reduction?

No, unfortunately not everyone who meets the criteria will get a lower sentence. At the end of the day, it is still up to the judge’s discretion whether or not to grant a reduction under Amendment 821 retroactivity.

Even if you qualify, the judge can deny your motion if they don’t feel a lower sentence is appropriate based on the facts of your case.

What should you do now?

My advice is to start preparing now if you think you might qualify for a sentence reduction under Amendment 821 retroactivity. Here are some steps:

• Review your original presentence report and sentencing documents.
• Calculate your criminal history points under the new Amendment 821 rules.
• Start drafting your motion so it’s ready to file on November 1st.
• Begin gathering evidence showing you deserve a reduction.

Having a lawyer assist with this process can really increase your odds of success. So try to consult with counsel if possible.

I hope this overview helps explain what’s going on with Amendment 821 retroactivity. Let me know if you have any other questions!