DEFENDER SERVICES OFFICE
TRAINING DIVISION





CRACK COCAINE SENTENCING >
RETROACTIVITY OF CRACK COCAINE AMENDMENTS

GUIDANCE TO CJA PANEL ATTORNEYS

This page is intended to give basic guidance to CJA panel attorneys who seek appointment, or are appointed, to represent a client who may be eligible for relief under the retroactive application of the crack guideline amendments.

 

I. Legal Framework

18 U.S.C. §3582(c)(2) permits a court to resentence a defendant who was originally sentenced on the basis of a guideline which has subsequently been lowered and made retroactive by the Sentencing Commission.

Under the sentencing guidelines, retroactivity is governed by the policy statement at U.S.S.G. §1B1.10. Section 1B1.10 specifically enumerates the new crack cocaine amendments (706, as amended by 711 and 715) as amendments which may be retroactively applied. See U.S.S.G. §1B1.10(c).

The means for pursuing a resentencing, generally, is by filing a motion pursuant to 18 U.S.C. §3582(c)(2) in the district court in which the original sentencing occurred.

Counsel should be aware that the law governing resentencings under 18 U.S.C. §3582(c)(2) and U.S.S.G. §1B1.10 is in a state of significant flux. This is because 18 U.S.C. §3582(c)(2) was written before the Supreme Court’s decision in Booker, and the extent to which Booker may apply at 18 U.S.C. §3582(c)(2) resentencings is the subject of litigation. In addition, the Sentencing Commission significantly amended U.S.S.C. §1B1.10 in conjunction with deciding that the crack guidelines should be applied retroactively. The changes to U.S.S.C. §1B1.10 have also been a subject of litigation. For information on these and other substantive legal issues that may arise in crack retroactivity cases, please see the postings on our Crack Cocaine Amendments Page.


II. Identification of Eligible Clients

Around the country, local Federal Defender offices, CJA Panel Representatives and CJA Resource Counsel have worked with local courts, probation offices, and U.S. Attorney’s offices to identify individuals who may benefit from the retroactive application of the crack guidelines, and, in most jurisdictions, have developed a plan for the appointment of counsel for such individuals. Please contact your local Defender office (or CJA Panel Resource Counsel in districts where there is no defender office) to find out the particular approach(es) being developed in your district. A list of local Defender and Panel contacts is available here. Both the U.S. Probation Office and the U.S. Sentencing Commission have compiled lists of potentially eligible individuals. While each list has value, federal defenders and CJA panel attorneys should not rely on either list as comprehensive. Rather, the lists should be used as a starting point in your file search to identify past clients who may benefit from the retroactive application of the crack guidelines.

 

III. The Right to Counsel

The Defender community strongly believes that counsel should be appointed to represent indigent defendants in 18 U.S.C. §3582(c)(2) proceedings. For arguments supporting the right to counsel, see Appointment of Counsel in Crack Retroactivity Cases and Providing Counsel to All Potentially Eligible Beneficiaries of the Retroactive Crack Guideline Amendment.


IV. CJA Panel Attorney Appointment and Compensation Issues

A. CJA Panel Attorney Appointment and Compensation

The Administrative Office of the U.S. Courts views appointments in 18 U.S.C. §3582(c)(2) proceedings as “other” appointments under 18 U.S.C. §3006A(d)(2). The case compensation maximum, exclusive of expense reimbursements, is $1700 (where services were completed on or after October 13, 2008). See 18 U.S.C. §3006A(d)(2). Payments exceeding this amount may be authorized for “extended or complex” representations, where the presiding judge certifies they are necessary to provide fair compensation and the chief judge of the circuit (or active circuit judge delegate) approves. 18 U.S.C. §3006A(d)(2)-(3). For further guidance on seeking reimbursement in excess of the attorney case compensation maximum, see CJA Guideline 2.22C(2) and CJA Guideline 2.22B(3).

B. Compensation of Other Service Providers

1. Compensation Limits

The Criminal Justice Act limits the compensation available for service providers (other than appointed counsel) in non-capital cases to $1,600 (exclusive of expense reimbursements). Payments exceeding this amount may be authorized for services of an unusual character or duration, where the presiding judge certifies they are necessary to provide fair compensation and the chief judge of the circuit (or active circuit judge delegate) approves. See 18 U.S.C.
§3006A(e)(3).

2. Obtaining Services without Prior Authorization

Prior authorization from the court is required for services other than counsel in excess of $500. Panel attorneys may obtain investigative, expert, and other services without prior authorization if necessary for adequate representation, but the total compensation may not exceed $500, unless later approved by the court in the interests of justice, upon a finding that timely procurement could not await prior authorization. See 18 U.S.C. §3006A(e)(2).


  V. Additional Resources

In addition to the resources cited above, CJA panel attorneys who are handling crack amendment retroactivity cases are encouraged to view all of the resources available on our Crack Cocaine Amendments Page, including a collection of sample motions and orders. If, after reviewing these resources and consulting with your local Federal Defender office, CJA Panel Representative, or CJA Resource Counsel, you have further questions, please call the Training Branch Hotline at (800) 788-9908.