10-b-3 Applying for Re-sentencing

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

10-B-3. Applying for Re-Sentencing

(a) How Do You Apply?

To apply for re-sentencing because the new Guidelines have lowered the sentence for your offense, you must file a motion under 18 U.S.C. §3582(c)(2).³⁴ You must file the motion in the same district court where you were sentenced. 18 U.S.C. §3582(c)(2) allows courts to re-sentence prisoners who were sentenced using the old Guidelines when the new Guidelines are retroactive and have lowered the suggested sentence for your offense.³⁵ You can find sample motions at the end of this Chapter.

It is unclear whether you have the right to an attorney when you apply for re-sentencing.³⁶ You may need to write and file your application for re-sentencing on your own. This is called filing pro se.

(i) How to File a Section 3582(c)(2) Re-Sentencing Motion Pro Se

In order to file a motion pro se for re-sentencing under 18 U.S.C. §3582(c)(2), you will need to prepare an application. When you are finished, you will file your application and submit it to the district court that handled your original sentencing. Before you begin your application, you should make sure you know some key facts about your case: ³⁷

(1) Your criminal case number,

(2) Your base offense level-you can find this in the "Criminal Computation" section of your pre-sentence report or you can calculate it yourself,

(3) Your criminal history,

(4) The Sentencing Guideline range that was originally used in your sentencing,

(5) Your actual sentence,

(6) The new Sentencing Guideline range that would be applicable to your crime under the amended Guidelines,

(7) Whether you were sentenced pursuant to a binding plea agreement or were sentenced based on your status as a career offender,

(8) Your disciplinary record and program participation during your incarceration.

Your application is a chance for you to argue that you are an ideal candidate for re-sentencing. You should remember that the court will probably receive many of these kinds of motions from prisoners, so you may not want to make your application too long. Using the sample motions at the end of this chapter and filling in your own information is probably the simplest way to file an effective pro se motion.³⁸

After you file your motion for re-sentencing under 18 U.S.C. §3582(c)(2), the judge may hold a re-sentencing hearing. At this hearing, the judge may consider factors listed in 18 U.S.C. §3553(a).³⁹ If you think that some of these factors might help you for re-sentencing, you may want to explain them in your application. For example, you should mention any vocational or educational programs you have participated in while in prison. You should also mention other ways in which you can show your own rehabilitation. If you think these factors will be important in your re-sentencing, you should apply to have an attorney appointed using the form in Appendix A of this Chapter.

(b) Are You Entitled to a Hearing?

Under the Sentencing Guidelines, you are entitled to a hearing whenever any important factor in the sentencing determination is "reasonably in dispute" or whenever a judge plans to consider facts not found at the original sentencing proceeding.⁴⁰ Usually, courts find that a hearing is appropriate whenever there is a legitimate question of fact. Some appellate courts have found abuse of discretion where the lower court refused to hold a 18 U.S.C. §3582(c)(2) hearing and denied the prisoner's Section 3582(c)(2) motion for a sentence reduction.⁴¹...