Revocation Sentences Are Part of the Original “Covered Offense” for First Step Act §404 Relief; Concurrency Alone Does Not Create an Aggregate Sentence

Introduction

In United States v. John Johnson, No. 23-2274 (7th Cir. Mar. 26, 2025), the Seventh Circuit addressed whether a defendant may seek a sentence reduction under §404 of the First Step Act for a prison term imposed upon revocation of supervised release where the supervised release stems from a pre–August 3, 2010 crack-cocaine conviction. The court held that such a revocation sentence is eligible for First Step Act relief because postrevocation penalties relate back to, and are part of, the penalty for the original offense.

However, the court affirmed the district court’s denial of relief on harmless-error grounds. Because Johnson’s 24-month revocation term ran concurrently with a separate 180-month sentence for 2014 powder-cocaine offenses—and because the two sentences were “distinct and disaggregated” rather than part of one integrated sentencing package—the error in deeming Johnson ineligible did not change his overall custody exposure.

The decision thus clarifies two important points in the Seventh Circuit:

Eligibility: A revocation sentence tied to a covered crack conviction is eligible for §404 consideration, even if the revocation sentence was imposed after the First Step Act’s enactment and even if the sentencing court did not actually apply the Fair Sentencing Act at revocation.
Harmlessness/Scope: Concurrency and a combined hearing do not, standing alone, create an “aggregate” or “integrated” sentence that would permit resentencing of a non-covered offense; where sentences are disaggregated, an eligibility error can be harmless if a longer concurrent term remains intact.

Summary of the Opinion

John Johnson pleaded guilty in 2020 to two counts of distributing powder cocaine based on 2014 sales while he was on supervised release for a 2001 crack-cocaine conviction. At a combined proceeding, the district court imposed concurrent sentences: 180 months for the new powder-cocaine convictions and 24 months for the supervised release violation. Nearly two years later, Johnson moved under §404(b) of the First Step Act to reduce the 24-month revocation sentence on the theory that it flowed from his 2001 crack conviction—a covered offense. The district court denied relief, holding him ineligible because the revocation sentence was imposed after the First Step Act.

The Seventh Circuit held:

Eligibility: Johnson’s revocation sentence is eligible for First Step Act reduction because revocation punishment “relate[s] to the original offense” and is “part of the penalty for the initial offense.” The §404(c) bar for sentences “imposed in accordance with” the Fair Sentencing Act did not apply because the revocation sentence was not actually imposed using the Fair Sentencing Act’s altered penalties.
Harmless Error: Any error was harmless. Johnson’s 24-month revocation term ran concurrently with his 180-month powder-cocaine sentence, and the record showed the two were “distinct and disaggregated” rather than part of a single integrated sentencing package. Consequently, the district court could not revisit the 180-month sentence in a §404 proceeding, and reducing the 24-month revocation term alone would not change the total imprisonment term.

The judgment was affirmed.

Analysis

Precedents Cited and Their Role

Johnson v. United States, 529 U.S. 694 (2000): The Supreme Court held that “postrevocation penalties relate to the original offense.” This foundational principle anchors the Seventh Circuit’s conclusion that a revocation sentence is part of the penalty for the underlying conviction and therefore can be a vehicle for §404 relief when that underlying crime is a covered crack offense.
United States v. Haymond, 588 U.S. 634 (2019): Reaffirmed that supervised-release punishments “arise from and are treated as part of the penalty for the initial offense.” This reinforced the relation-back concept applied here.
First Step Act §404; Fair Sentencing Act §§2–3; Concepcion v. United States, 597 U.S. 481 (2022): The opinion outlines §404’s retroactivity scheme, including the bar in §404(c) on reconsidering sentences already imposed “in accordance with” the Fair Sentencing Act. Concepcion is cited for the scope of §404(c)’s limitations and general remedial framework.
United States v. Corner, 967 F.3d 662 (7th Cir. 2020): The Seventh Circuit previously acknowledged that First Step Act relief may affect terms imposed on revocation, supporting remand for district court consideration in that context.
United States v. Gonzalez, 71 F.4th 881 (11th Cir. 2023); United States v. Woods, 949 F.3d 934 (6th Cir. 2020); United States v. Venable, 943 F.3d 187 (4th Cir. 2019): Sister circuits that have held revocation sentences tied to covered offenses are eligible for §404 reductions. The Seventh Circuit aligns with this consensus.
United States v. Cotton, 108 F.4th 987 (7th Cir. 2024): Cited for the proposition that, in setting the revocation statutory maximum under 18 U.S.C. §3583(e)(3), the district court could look to the classification of the original offense as it stood (here, a Class B felony), yielding a 3-year cap pre–Fair Sentencing Act. The court’s reliance on a three-year cap, rather than a two-year cap that would follow under the Fair Sentencing Act’s revised thresholds, demonstrated that the revocation sentence was not “imposed in accordance with” the Fair Sentencing Act and thus §404(c)’s bar did not apply.
United States v. Curtis, 66 F.4th 690 (7th Cir. 2023): Articulated when sentences for covered and non-covered counts constitute a “single, integrated” aggregate sentencing package such that a court may adjust non-covered sentences in a §404 proceeding. The Seventh Circuit applied Curtis’s test and concluded Johnson’s sentences were disaggregated.
Ruiz v. United States, 990 F.3d 1025 (7th Cir. 2021): Supports harmless-error analysis: an error is harmless where even vacating the challenged conviction would not reduce the total imprisonment term.
United States v. Shaw, 957 F.3d 734 (7th Cir. 2020): Confirms that eligibility under the First Step Act is reviewed de novo.

Legal Reasoning

1) Eligibility Under §404: Revocation Punishment Relates Back to the Covered Offense

The panel framed the “eligibility” issue as whether a defendant can seek a reduction of a sentence imposed for violating supervised release when the term of supervised release was imposed as part of a sentence for a “covered offense” under §404. Relying on Johnson v. United States and Haymond, the court answered yes: postrevocation penalties are part of the penalty for the original offense. Thus, a revocation sentence connected to a covered crack offense is itself eligible for First Step Act consideration. This conclusion aligns with the Fourth, Sixth, and Eleventh Circuits, solidifying a broad appellate consensus.

2) The §404(c) Bar: “Imposed in Accordance With” Requires Actual Application of Fair Sentencing Act Changes

The government’s principal resistance came via §404(c): no relief if the sentence was “previously imposed … in accordance with” the Fair Sentencing Act. The government argued that because Johnson’s revocation sentence was imposed in 2020—after the First Step Act—§404(c) barred relief.

The Seventh Circuit rejected a purely temporal view. It held that a revocation sentence is not “imposed in accordance with” the Fair Sentencing Act merely because it postdates the Act. Instead, the question is functional: did the Fair Sentencing Act actually influence the revocation sentence? The court described two potential channels through which the Fair Sentencing Act could have mattered at revocation:

Guidelines channel: It could have reduced the advisory policy statement range under U.S.S.G. §7B1.4 by lowering the defendant’s criminal history category. That did not happen here; Johnson’s category remained III.
Statutory-maximum channel: It could have altered the revocation statutory maximum under §3583(e)(3) by changing the class of the original offense (here, from a Class B to Class C felony), thereby reducing the cap from three years to two. But under Cotton, the district court looked to the original classification and used a three-year cap. Because the court did not apply the Fair Sentencing Act’s revised penalties, the sentence was not “in accordance with” that Act.

Consequently, §404(c) did not bar Johnson’s motion, and the district court erred in holding him ineligible.

3) Harmless Error: Disaggregated, Concurrent Sentences Do Not Permit Resentencing of Non-Covered Terms

Despite the eligibility error, the Seventh Circuit affirmed on harmless-error grounds. Johnson’s 24-month revocation sentence ran concurrently with his 180-month sentence for non-covered powder-cocaine offenses, and the court found no basis to treat the two sentences as a single, integrated “sentencing package” under Curtis.

Applying Curtis, the court examined whether there was reason to think the sentences were interdependent at the time of sentencing. It concluded they were not:

Separate cases and judgments: The revocation and new-offense sentences arose from different conduct, were docketed separately, and resulted in separate judgments.
Distinct bases: The revocation punishment related to the 2001 crack conviction, while the 180-month sentence concerned new 2014 powder-cocaine conduct.
Record evidence: Nothing indicated the district court intended to issue “one global sentence.” The court explained why 24 months addressed the supervised release violation and why 180 months addressed the new powder-cocaine crimes. The sentences were made concurrent but not interdependent.

Concurrency and a single §3553(a) discussion do not, without more, create an aggregate package. Because the 180-month term could not be revisited in a §404 proceeding and would control the duration of custody regardless, any error in refusing to consider the 24-month reduction was harmless. Ruiz supplied the general harmless-error principle.

Impact

Eligibility Clarified for Revocation Sentences: The Seventh Circuit squarely holds that revocation sentences tied to a covered crack offense are eligible for §404 relief. This will matter in cases where a defendant is serving (or faces) a revocation term rooted in a pre–August 3, 2010 crack conviction. Counsel should not be deterred by the mere fact that the revocation sentence was imposed after the First Step Act’s enactment.
Functional Reading of §404(c)’s “In Accordance With” Bar: The court’s approach requires a concrete showing that the Fair Sentencing Act influenced the revocation sentence—either by changing the advisory policy statement range or by altering the statutory maximum. Mere timing is insufficient. This provides a clear roadmap for both sides to brief whether §404(c) applies in revocation settings.
Limits of Relief Where a Longer Concurrent Sentence Exists: Even when a revocation sentence is eligible, relief may be practically unavailable if a longer concurrent sentence for a non-covered offense stands and the record shows the sentences are disaggregated. Defense strategy should thus include building a record of interdependence (if supportable), e.g., grouped counts, a single judgment, or explicit “global sentence” statements, to fit within Curtis’s “aggregate sentence” doctrine.
Curtis Doctrine Narrowed by Facts, Not Abandoned: The decision reinforces that Curtis is fact-intensive. Concurrency, combined hearings, or a unitary §3553(a) discussion are not enough by themselves. Practitioners must identify concrete indicia that the court fashioned one integrated punishment.
Cotton’s Role at Revocation: By citing Cotton to approve use of the original offense’s class to set the §3583(e)(3) cap, the panel signals that, in the Seventh Circuit, revocation statutory maxima remain pegged to the original classification unless and until a court grants §404 relief. Paradoxically, that very reliance demonstrates why §404(c) does not bar eligibility—the sentence was not “in accordance with” the Fair Sentencing Act.
Administrative Convenience ≠ Legal Integration: The court’s explicit observation—that the district court handled both matters together “out of administrative convenience” at the defendant’s request—warns that calendar efficiencies do not transform separate sentences into an aggregate package.

Complex Concepts Simplified

Covered offense (First Step Act §404): A federal offense whose statutory penalties were modified by the Fair Sentencing Act of 2010 and was committed before August 3, 2010—most commonly, pre-2010 crack-cocaine offenses affected by the raised quantity thresholds.
Revocation of supervised release: If a person on supervised release violates conditions, a court may revoke and impose a prison term under 18 U.S.C. §3583(e)(3). That imprisonment is treated as part of the penalty for the original crime.
§404(c) “in accordance with” bar: A court cannot consider a §404 motion if the sentence was previously imposed or reduced using the Fair Sentencing Act’s changes. The Seventh Circuit reads this functionally: the Act must have actually influenced the sentence, not merely preceded it in time.
Advisory policy statement range at revocation: U.S.S.G. §7B1.4 offers recommended ranges for revocation sentences based on the grade of violation and criminal history category. If the Fair Sentencing Act would have lowered the criminal history category tied to the original offense, the range might change; if not, §404(c) is not triggered via this channel.
Statutory maximum at revocation: The maximum reimprisonment at revocation depends on the class of the original offense (e.g., Class B allows up to 3 years; Class C up to 2 years) under §3583(e)(3). Whether, when, and how the Fair Sentencing Act’s reclassification affects that cap is governed in the Seventh Circuit by Cotton, which the panel applied here.
Aggregate or integrated sentence (Curtis): A package where covered and non-covered sentences are interdependent—e.g., grouped under the Guidelines, reflected in a single judgment, or expressly fashioned as a “global” sentence. Only in such cases may a court adjust non-covered sentences during a §404 resentencing.
Concurrent vs. consecutive: Concurrent sentences run at the same time; consecutive sentences stack. Concurrency alone does not make sentences interdependent for Curtis purposes.
Harmless error: An appellate doctrine under which a judgment is affirmed despite identified error because the error did not affect the outcome—in sentencing, where correcting the error would not reduce the defendant’s total term of imprisonment.

Conclusion

United States v. Johnson establishes two critical propositions in the Seventh Circuit. First, a revocation sentence arising from a pre-2010 crack conviction is eligible for First Step Act §404 relief because revocation punishment is part of the penalty for the original offense. Second, §404(c)’s “in accordance with” bar is functional: a sentence imposed after the First Step Act is not automatically excluded unless the sentencing court actually applied the Fair Sentencing Act’s altered penalties or ranges.

At the same time, the court underscores the limits of relief when a longer, concurrent sentence for non-covered conduct remains intact and the record reflects disaggregated sentencing. Concurrency, a combined hearing, and a single §3553(a) analysis, without more, do not transform separate sentences into an aggregate package that would permit resentencing of a non-covered term under Curtis.

The opinion harmonizes Seventh Circuit law with the growing circuit consensus on revocation eligibility under §404 and provides clear guidance on §404(c), revocation statutory caps, and harmless-error review. For litigants, the lesson is twofold: defendants with standalone revocation exposure tied to covered offenses have a viable §404 path; but where a longer concurrent sentence controls, meaningful relief will often turn on proving genuine sentence interdependence at the original hearing.