No But-For Link: Sixth Circuit Narrows “Relevant Conduct” for Prior-Sentence Points After Amendment 821

Introduction

In United States v. Ronnie Edward Duke, the Sixth Circuit addressed a recurring question in the wake of the U.S. Sentencing Commission’s 2023 criminal-history reform (Amendment 821, Part A): when can a separate conviction be treated as “relevant conduct” to the instant offense, such that it does not generate criminal-history points and potentially reduces a defendant’s criminal history category for retroactive sentence-modification purposes?

The defendant, Ronnie Duke, sought a sentence reduction under 18 U.S.C. § 3582(c)(2) after Amendment 821 retroactively lowered the impact of “status points.” He argued that one additional criminal-history point—assessed for his conviction for failure to surrender (Case Two)—should not count because that conduct was “relevant” to his instant federal offense of conviction, assault on a federal officer (Case Three). If the point fell away, Duke would move from Criminal History Category III to Category II, potentially making him eligible for a reduced sentence.

The Sixth Circuit affirmed the district court’s denial, holding that the failure-to-surrender conviction was not relevant conduct to the assault offense under U.S.S.G. § 1B1.3 and that the point was correctly assessed under U.S.S.G. § 4A1.2. The opinion clarifies that a mere but-for or situational linkage between offenses—for example, that one event places the defendant in court where a later assault occurs—does not make the earlier offense “relevant conduct” to the later offense for Guidelines criminal-history purposes.

Summary of the Opinion

The panel (Chief Judge Sutton, and Judges Batchelder and Larsen; opinion by Judge Batchelder) affirmed the district court’s determination that:

• Amendment 821’s reduction to status points lowered Duke’s criminal-history score in the assault case from six to four points, but did not itself render him eligible for a reduction, because
• the separate criminal-history point from his failure-to-surrender conviction (Case Two) properly counted as a “prior sentence” under U.S.S.G. § 4A1.2,
• the failure to surrender was not “relevant conduct” to the assault under U.S.S.G. § 1B1.3, and
• with the point intact, Duke remained in Criminal History Category III, so he was ineligible at Step One of the § 3582(c)(2) inquiry and the court properly did not proceed to Step Two (the § 3553(a) factors).

The court rejected Duke’s argument that the failure to surrender was part of the assault’s “instant offense” simply because the failure-to-surrender prosecution placed him in the courtroom where he later assaulted the Assistant U.S. Attorney (AUSA). The panel emphasized that § 1B1.3 requires more: the conduct must occur during the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense. The record showed none of those connections, and the eight-month gap, differing victims, and lack of a common plan underscored the separation.

Case Background and Procedural Posture

• 2012: Duke received 156 months for conspiracy to commit wire fraud (Case One). He failed to self-report to prison.
• Failure to surrender led to an arrest warrant and a new indictment (Case Two). While appearing for Case Two, Duke violently assaulted a federal prosecutor (AUSA), prompting a separate assault indictment (Case Three). While detained, he attempted to escape, resulting in a superseding indictment adding attempted escape to Case Two.
• Duke pleaded guilty to the assault (Case Three) and to both Case Two charges (failure to surrender and attempted escape). He received 97 months for the assault and 18 months on Case Two.
• Original criminal-history calculation in the assault case (Case Three): six points (three from Case One, one from Case Two, plus two status points because he offended while under a criminal-justice sentence), placing him in Category III.
• After Amendment 821 reduced status points, Duke moved under § 3582(c)(2) to reduce his assault sentence and renewed his earlier objection to the one point from Case Two, arguing it was “relevant conduct.”
• The district court disagreed and denied eligibility; the Sixth Circuit affirmed.

Detailed Analysis

Precedents and Authorities Cited

• Dillon v. United States, 560 U.S. 817 (2010): Establishes the two-step framework for § 3582(c)(2) motions. Step One asks eligibility under § 1B1.10; Step Two considers § 3553(a) factors. The panel adhered to that framework, stopping at Step One when it found Duke ineligible.
• United States v. Ruffin, 978 F.3d 1000 (6th Cir. 2020); United States v. Curry, 606 F.3d 323 (6th Cir. 2010); United States v. Webb, 760 F.3d 513 (6th Cir. 2014): These cases provide the abuse-of-discretion standard for reviewing denials of sentence reductions and articulate when reversal is warranted (e.g., reliance on clearly erroneous facts or legal error). The panel applied this deferential standard and found no abuse.
• U.S.S.G. § 1B1.3 (Relevant Conduct): Defines the scope of acts that count as part of the “instant offense,” including acts occurring during the offense, in preparation for it, or to avoid detection/responsibility. The panel relied heavily on this text and its commentary, including Application Note 5 on “common scheme or plan.”
• U.S.S.G. § 4A1.2(a)(1), (a)(4) (Prior Sentence) and § 4A1.1(e) (2023) (Status Points as amended by Amendment 821): Provide the framework for counting prior convictions and the revised treatment of status points. Both parties agreed that Amendment 821 reduced Duke’s status points and that the Case Two disposition qualified as a prior sentence under § 4A1.2(a)(4), leaving the “relevant conduct” question dispositive.
• United States v. Hodge, 805 F.3d 675 (6th Cir. 2015): Recognizes that relevant conduct must meet § 1B1.3’s threshold and bear a logical relationship to the offense of conviction. The panel emphasized that Hodge’s “logical relationship” is an additional, not an alternative, requirement and distinguished Hodge factually.
• United States v. McDaniel, 398 F.3d 540 (6th Cir. 2005): Found state mail-fraud convictions to be relevant conduct to federal fraud offenses where the modus operandi, victims, and time period overlapped. The panel found none of these overlaps in Duke’s case.
• Scarber v. Palmer, 808 F.3d 1093 (6th Cir. 2015): Reinforces waiver of arguments raised for the first time in a reply brief. The panel applied this to Duke’s late-breaking alternative arguments.
• United States v. Duke, 870 F.3d 397 (6th Cir. 2017): Prior appeal in Duke’s litigation history; cited for background facts and procedural history.

Legal Reasoning

The court’s reasoning turns on the precise contours of “relevant conduct” under U.S.S.G. § 1B1.3 and how that definition interacts with the Guidelines’ criminal-history rules:

1. The “instant offense” is the assault on a federal officer (18 U.S.C. § 111(a)(1), (b)). Under § 4A1.2 comment n.1, conduct counts as part of the instant offense only if it is “relevant conduct” within § 1B1.3.
2. Section 1B1.3(a)(1) defines relevant conduct to include acts and omissions that occur during the commission of the offense of conviction, in preparation for it, or in the course of attempting to avoid detection or responsibility for it. Duke’s failure to surrender did not satisfy any of these prongs with respect to the assault:
   • Temporal separation: The failure to surrender occurred more than eight months before the assault, negating a “during” or “in preparation for” nexus.
   • Purpose and victim mismatch: The assault’s impetus (anger over a denied transfer request) does not reflect an attempt to avoid detection or responsibility for failing to surrender; the victims differ (the United States as custodian versus the individual AUSA).
   • No overarching plan: Application Note 5 to § 1B1.3 explains that a “common scheme or plan” requires a substantial connection via common victims, accomplices, purpose, or modus operandi. None were present.
3. The panel underscored that a but-for or situational chain (“if not for the failure to surrender, there would be no assault hearing”) is legally insufficient. Hodge’s “logical relationship” requirement supplements, but does not supplant, § 1B1.3’s threshold criteria. The voyeurism conduct in Hodge was both relevant under § 1B1.3 and logically tied to the receipt of child pornography; Duke’s failure to surrender bore no such substantive relation to the assault.
4. McDaniel reinforced this analysis: there, overlapping victims, method, and timeframe integrated the conduct. In contrast, Duke’s offenses shared neither an integrated scheme nor a common operative method, and they were separated by months.
5. As a corroborating datapoint, the PSR and sentencing court did not apply an obstruction-of-justice enhancement under § 3C1.1 in the assault case, which one might expect if the failure to surrender were truly part of avoiding detection/responsibility for the assault. While not dispositive, this consistency supports the separation of the two offenses.
6. Because the failure-to-surrender conviction was not relevant conduct, the point assessed for that conviction properly remained in Duke’s criminal-history score. After Amendment 821’s status-point reduction, Duke still carried four points, leaving him in Criminal History Category III and ineligible for a § 3582(c)(2) reduction at Step One. The district court correctly declined to proceed to Step Two and consider § 3553(a).

Impact and Practical Significance

Though unpublished and therefore nonprecedential in the Sixth Circuit, the decision is instructive for several reasons, particularly in the Amendment 821 era:

• Narrowing “relevant conduct” to more than mere but-for causation: Defendants may not recharacterize earlier convictions as part of the instant offense simply because those events placed them in settings where the offense of conviction occurred. Courts will look for the statutory and guideline touchpoints: temporal proximity, shared purpose, common victims, similar modus operandi, or acts to avoid detection/responsibility for the instant offense.
• Gatekeeping at Step One of § 3582(c)(2): The eligibility determination remains a stringent threshold. If the amended guideline range is unchanged because properly assessed criminal-history points keep the defendant in the same Criminal History Category, courts will deny the motion without reaching § 3553(a).
• Guardrails against overextension of Hodge: The opinion clarifies that Hodge’s “logical relationship” language is additive to, not a replacement for, § 1B1.3’s requirements. Logical relatedness alone cannot reclassify an otherwise distinct crime as relevant conduct.
• Practical cross-checks: The panel’s note that no obstruction-of-justice enhancement was applied shows a practical way courts and counsel can test a claimed “avoidance of detection/responsibility” theory. If the asserted connection were genuine, § 3C1.1 might have been in play in the relevant case.
• Litigation practice: The reaffirmed rule that arguments raised for the first time in a reply brief are waived (Scarber) is a caution to defendants filing § 3582(c)(2) motions to develop all eligibility theories in their opening submissions.

Complex Concepts Simplified

• Section 3582(c)(2) two-step process:
  • Step One: Eligibility. Has the Sentencing Commission lowered the applicable guideline range, and is a reduction consistent with the Commission’s policy statements (see § 1B1.10)? This typically involves recalculating the guideline range as if the specified amendment(s) applied at the original sentencing, without relitigating unrelated issues.
  • Step Two: Discretion. If eligible, should the court reduce the sentence after considering § 3553(a) factors (e.g., seriousness of offense, deterrence, public safety)?
• Amendment 821 (Part A) and “status points”:
  • Before 2023, defendants received two criminal-history points for committing an offense while under a criminal-justice sentence (e.g., probation, parole). Amendment 821 reduced the impact of these “status points” (now addressed in § 4A1.1(e) (2023)).
  • In Duke’s case, the amendment eliminated the two status points, reducing his score from six to four.
• “Prior sentence” versus “instant offense”:
  • A “prior sentence” is any sentence previously imposed for conduct not part of the instant offense (U.S.S.G. § 4A1.2(a)(1)). Under § 4A1.2(a)(4), certain convictions occurring after the instant offense but before sentencing on it can still count, if they are unrelated.
  • “Instant offense” includes only “relevant conduct” under § 1B1.3—acts during the offense, in preparation for it, or to avoid detection/responsibility for it, and in some contexts, acts that are part of a “common scheme or plan” or the “same course of conduct.”
• “Relevant conduct” thresholds:
  • Temporal nexus: How close in time are the acts?
  • Purpose and method: Do the acts share a common purpose or modus operandi?
  • Victims and participants: Are the victims or accomplices the same?
  • Obstruction/avoidance: Were the acts taken to avoid detection or responsibility for the instant offense?
  • Logical relatedness (Hodge): Even if § 1B1.3 is satisfied, courts also look for a coherent logical relationship—though this is supplemental to the § 1B1.3 criteria, not a substitute.
• Criminal History Category (CHC):
  • Criminal-history points are totaled and mapped to a CHC (I–VI). A change of one or two points can move a defendant into a lower category, changing the applicable guideline range.
  • Duke needed to drop from four points to three to reach CHC II; the court held he remained at four and thus stayed in CHC III.

Application to the Facts: Why Duke’s Theory Failed

• But-for causation is not enough: That the failure-to-surrender case brought Duke to court does not make the failure to surrender “during,” “in preparation for,” or “to avoid detection/responsibility” for the assault.
• Eight-month gap: The passage of time undermines any claim that the two offenses formed a continuous episode or preparation.
• Different harms and purposes: The failure to surrender is an offense against the judicial process; the assault was a violent, spontaneous attack triggered by disagreement over a prison transfer request—not a stratagem to defeat accountability for the failure to surrender.
• No common scheme: The Guidelines’ “common scheme or plan” concept requires substantial connective tissue (e.g., shared victims or methods), which was absent.

Practice Notes for Counsel

• When seeking post-Amendment 821 relief, carefully evaluate whether any criminal-history points can be eliminated by establishing that a prior conviction is part of the instant offense under § 1B1.3. Be prepared to show:
  • Close temporal linkage;
  • Shared purpose or modus operandi;
  • Overlapping victims or participants; or
  • A genuine effort to avoid detection or responsibility for the instant offense.
• Use the original PSR and guideline enhancements as cross-checks. If obstruction-of-justice was not applied, it may be harder to argue that separate conduct was aimed at avoiding responsibility for the instant offense.
• Develop all eligibility arguments in the opening brief; new arguments in reply are subject to waiver.
• Remember that § 3582(c)(2) is not a do-over sentencing. Per Dillon and § 1B1.10, courts substitute only the specific retroactive amendments and leave other guideline determinations in place unless directly affected by the amendment.

Conclusion

The Sixth Circuit’s decision reinforces a disciplined approach to relevant-conduct analysis in the § 3582(c)(2)/Amendment 821 context: a mere causal or situational connection between events does not satisfy § 1B1.3. To exclude a prior conviction from criminal-history scoring as part of the “instant offense,” defendants must demonstrate a substantive nexus—temporal, purposive, methodological, or obstructive—to the offense of conviction. By confirming that Duke’s failure to surrender was distinct from his later assault on a federal officer, the court kept his criminal-history category unchanged and ended the sentence-modification inquiry at Step One. The opinion offers a clear, practical blueprint for district courts and practitioners navigating Amendment 821’s retroactive changes: focus on the Guidelines’ precise thresholds for relevant conduct, resist overreading “logical relationship,” and apply the two-step § 3582(c)(2) framework faithfully.