“Statute-of-Conviction” Supremacy in First Step Act Motions
A Comprehensive Commentary on United States v. Ervin Junius Thornton, II, 6th Cir., Aug. 1 2025

I. Introduction

In United States v. Ervin Junius Thornton, II the United States Court of Appeals for the Sixth Circuit confronted a question that has divided district courts and generated uncertainty for incarcerated defendants seeking sentence reductions under § 404 of the First Step Act of 2018: When the original indictment (rendered before Apprendi v. New Jersey) uses the generic word “cocaine” without specifying “powder” or “base,” may a court look beyond the charging documents to sentencing‐stage findings in order to decide whether the conviction is a “covered offense”?

Thornton, serving multiple life sentences for murders and drug crimes committed in the mid-1990s, argued that the record showed he was actually punished for crack cocaine and was therefore eligible for retroactive relief after the Fair Sentencing Act’s 2010 reduction of crack penalties. The district court—and now the Sixth Circuit—disagreed, holding that the plain text of the indictment, verdict, and judgment governs. Because those documents referenced only “cocaine,” the conviction is treated as powder-cocaine-based, which the First Step Act does not retroactively affect.

Although marked “Not Recommended for Publication,” the opinion is important: it re-affirms and sharpens the Sixth Circuit’s “statute-of-conviction” approach first articulated in United States v. Boulding, and it reiterates that sentencing findings cannot rewrite the offense of conviction. As Judge White’s concurrence signals, the ruling places the Sixth Circuit squarely at odds with the Third Circuit’s more expansive methodology in United States v. Coleman.

II. Summary of the Judgment

• Holding: Thornton’s drug convictions involved powder cocaine, not crack cocaine; therefore, they are not “covered offenses” under § 404 of the First Step Act. The denial of his sentence-reduction motion is affirmed.
• Standard of Review: Whether the offense is “covered” is a historical fact reviewed for clear error. The district court’s decision was not clearly erroneous.
• Key Rationale: Eligibility “turns on the statute of conviction alone,” a determination fixed by the indictment, jury verdict, and judgment. Sentencing materials, prosecutorial letters, trial evidence, and the rule of lenity cannot transform a powder-cocaine conviction into a crack-cocaine offense.
• Concurring Opinion (Judge White): Recognizes tension with other circuits and suggests that, given pre-Apprendi ambiguity, the entire record could yield the opposite conclusion; yet clear-error review binds the court to affirm.

III. Analysis

A. Precedents Cited and Their Influence

1. United States v. Boulding, 960 F.3d 774 (6th Cir. 2020) – anchors the “indictment-verdict-judgment” rule for § 404 eligibility. Thornton extends Boulding by stressing that even for pre-Apprendi cases, courts may not “back-fill” drug type from sentencing evidence.
2. United States v. Thomas, 933 F.3d 605 (6th Cir. 2019) – establishes clear-error review for step-one findings under the First Step Act; invoked to insulate the district court’s factual conclusion.
3. United States v. Maxwell, 991 F.3d 685 (6th Cir. 2021) – cited for the two-step framework (eligibility, then discretionary reduction) but step two never reached here.
4. Apprendi v. New Jersey, 530 U.S. 466 (2000) – provides the temporal backdrop: before Apprendi, drug quantity and type were not jury elements, creating today’s record ambiguity.
5. Anderson v. City of Bessemer City, 470 U.S. 564 (1985) – standard formulation for clear error.
6. Teledyne Industries, Inc. v. NLRB, 911 F.2d 1214 (6th Cir. 1990) – explains that judicial estoppel requires adoption of a position by the court; a prosecutor’s letter does not suffice.
7. United States v. Anderson, 517 F.3d 953 (7th Cir. 2008) – quoted for the proposition that the rule of lenity does not resolve factual ambiguities.
8. United States v. Coleman, 66 F.4th 108 (3d Cir. 2023) – highlighted by the concurrence to show a circuit split on methodology.

B. Legal Reasoning of the Court

1. “Covered offense” is a legal status fixed at conviction.
   Section 404 looks backward to the offense “for which the sentence was imposed.” The Sixth Circuit treats this as purely historical, unaffected by later sentencing commentary.
2. Document hierarchy.
   • Primary evidence: indictment, special verdict form (if any), and final judgment.
   • Secondary evidence (trial transcript, PSR, prosecutor letters) carries little, if any, weight.
   • Where the primary documents are silent or ambiguous, ambiguity is factual, not legal—foreclosing the rule of lenity.
3. Standard of review disciplines the outcome.
   Clear-error review permits affirmance whenever the record reasonably supports the district court’s finding, even if another view is plausible (echoed by Judge White).
4. Sentencing findings do not mutate the conviction.
   The court underscores a bright line between Guidelines-factfinding (drug type/quantity for sentencing) and statutory elements. Only the latter determine First Step Act eligibility.
5. Concurrent-sentence doctrine avoided.
   Because the panel decided step one against Thornton, it declined to reach the government’s alternative ground—affirmance based on the doctrinal principle that appellate courts need not correct errors affecting only concurrent sentences.

C. Potential Impact of the Judgment

• Narrows First Step Act relief in the Sixth Circuit for pre-Apprendi defendants whose indictments employed generic “cocaine” language—common in 1990s prosecutions.
• Creates/solidifies a circuit split with the Third Circuit’s “whole-record” approach (Coleman). Petitioners may seek Supreme Court resolution.
• Signals prosecutorial drafting imperatives: modern indictments almost always recite the penalty subsection (e.g., § 841(b)(1)(A)(iii)), but the case reminds drafters that lack of specificity can later foreclose resentencing relief—an incentive with future collateral consequences.
• Shapes litigation posture in compassionate-release petitions, where defendants often pair § 404 claims with § 3582(c)(1)(A) arguments. Counsel must marshal clear proof from charging documents or accept the risk of ineligibility determinations reviewed only for clear error.
• Influences plea-bargain evaluations for ongoing cases: defendants aware of the Sixth Circuit’s rigid “statute-of-conviction” rule may bargain harder for explicit crack-cocaine language if necessary.

IV. Complex Concepts Simplified

First Step Act § 404

Allows defendants convicted of crack-cocaine offenses before the 2010 Fair Sentencing Act to request reduced sentences if the statutory penalties for their offense were lowered.

Covered Offense

An offense whose statutory penalty was modified by the Fair Sentencing Act (usually crack, not powder cocaine).

Statute-of-Conviction Approach

Determining eligibility solely from the legal documents that define the offense (indictment, verdict, judgment)—not from sentencing facts.

Clear Error Review

An appellate standard under which a factual finding stands unless the reviewing court is “left with the definite and firm conviction” that a mistake occurred.

Rule of Lenity

Canon of construction directing courts to resolve statutory ambiguities in criminal defendants’ favor. It does not apply to disputes over historical facts.

Concurrent-Sentence Doctrine

Permits appellate courts to leave an error uncorrected if the defendant is serving an equal or longer, unchallenged concurrent sentence on another count.

V. Conclusion

United States v. Thornton crystallizes the Sixth Circuit’s commitment to a text-centric, element-based inquiry when determining First Step Act eligibility. By refusing to let sentencing-stage crack findings re-characterize a powder-cocaine indictment, the court fortifies a bright line between what the jury (or indictment) established and what the judge later found for Guidelines purposes. For defendants sentenced in the pre-Apprendi era, that line may prove decisive—and, in many cases, dispositive—of § 404 relief.

The decision’s broader import lies in its contribution to an emerging inter-circuit debate. Should ambiguous pre-2000 records be resolved by examining the entire case file (Third Circuit), or should courts look no further than the statutory charging documents (Sixth Circuit)? Until the Supreme Court intervenes or Congress clarifies § 404, the “statute-of-conviction supremacy” announced and reinforced in Thornton will govern within the Sixth Circuit, limiting crack resentencing opportunities and guiding district courts’ fact-finding under a deferential clear-error lens.