Do You Need an Attorney to File Your Drug Minus Two Motion?

Several organizations have said that nobody who is eligible for a sentence reduction under Amendment 782 (also known as the “Drug Minus Two” or “All Drugs Minus Two” amendment) needs to hire an attorney to handle their motion. That statement is true, but only to an extent. Here is what I mean.

When I spoke to the heads of a couple of different Federal Public Defenders’ offices, I learned that several of their offices will receive a list of who is likely to be eligible, and they intend to review every case on that list. For individuals whom they determine are clearly eligible, they will confer with the U.S. Probation Office and the U.S. Attorney to try to work out an agreement to reduce the sentence. If they can reach an agreement, they will submit an agreed motion. Then the Judge will decide whether to grant the sentence reduction motion or not.

If they can actually accomplish this for all of the 46,290 potentially eligible individuals, then that would be great for all of those people.

However, the Public Defenders that I talked to have said that there is no foolproof way to make sure that everyone who is eligible will be reviewed. Besides that, if the Public Defender believes the individual is technically eligible, but the U.S. Attorney is not willing to agree to the motion (for whatever reason), will the Public Defender file a motion anyway, or will they just let it go? Or, if they file a half-hearted motion anyway, what are the chances that the Judge will go against the U.S. Attorney?

Then there are the “hard cases” — those whose data report does not clearly indicate eligibility. This could be someone who has a Career Offender enhancement, yet whose enhancement was inappropriate at the time or would be inappropriate now. There are also Career Offenders whose quantities at the time called for a higher enhanced base offense level than would be called for if scored under the current statutes. Further, there are people for whom the Government would oppose a sentence reduction motion just because they don’t like the Defendant, and the Defendant really needs someone to do the work necessary to show the Judge that their case is worth serious consideration. Finally, there are the cases involving a mandatory minimum, and these will just be left off the lists sent to the Public Defenders.

For those “hard cases,” either the Public Defender’s office will not even review them, or they may review them and decline to represent the Defendant, or they might file a half-hearted motion to carry out their duty. The Defendant himself may or may not get any input into the process, but only find out later that some action has been taken that has prejudiced their case for future opportunities.

Finally, there is the wait time. While the Courts will have a whole year to rule on these cases before anyone can be released (November 1, 2014, is the earliest date on which the Judges can begin granting the motions, and November 1, 2015, is the earliest date on which someone whose sentence has been reduced under Amendment 782 can be released), will the Public Defenders get to all 46,290 cases anytime soon? Or will people who are just waiting to find out whether they are eligible and whether the Public Defenders’ office is going to take their case just sit and wonder what (if anything) the Public Defender is going to do, and when?

So, here are the guidelines I recommend when deciding whether to hire an experienced private attorney to look out for your or your loved one’s best interests:

1. If the case is potentially a “hard case,” then consider hiring an attorney who will be able to give the case and the client the attention that they deserve. This attorney can prepare a well-crafted motion to best position the client for a good result. Having an attorney who doesn’t have hundreds of other boilerplate motions to file is the best option in that situation.
2. If the defendant received the Career Offender enhancement, then consider hiring an experienced attorney to review the case to see whether any exception applies.
3. If the defendant received a mandatory minimum sentence, then consider hiring an experienced attorney to determine whether the primary exceptions apply.
4. If the defendant did cooperate or can cooperate now or has someone who could cooperate on their behalf, then consider hiring an attorney with extensive experience in this form of sentence reduction. Besides the fact that this form of relief reduces the sentence to begin with, it can also eliminate some of the other factors that would render someone technically ineligible. You must have a private attorney to make sure that this process goes as it should. For more information on this, please read our article about sentence reductions (or the condensed version for mobile devices) along with the brief videos on this important topic.
5. If you just get tired of waiting around wondering if anything has been or is being done or will be done on your case, then consider hiring a private attorney who will give your case the priority that a Public Defender’s office with hundreds — if not thousands — of cases just can’t give.

If you would like to just email me regarding the decision as to whether to consider hiring private counsel, I would be glad to hear from you. My email address is chad@drugandgunlawyer.com, or click on the “Contact Us” link here or at the top of the page for the rest of my contact information.

by Chad Van Cleave