Sixth Circuit Adopts Sentencing‑Package Doctrine for First Step Act § 404: Non‑Covered Counts May Be Reduced Only If Interdependent With a Covered Offense

Introduction

In United States v. John Gordon (consolidated with United States v. Edward Dale, Gene Polk, and Gregory Brown), the Sixth Circuit addressed whether, and to what extent, district courts may reduce sentences for non‑covered offenses (here, § 848(e)(1)(A) homicide counts) when granting relief under § 404 of the First Step Act of 2018 for a covered crack-cocaine offense. The defendants—members of the Detroit “Best Friends” gang—were convicted in the 1990s of a crack-and-powder conspiracy, intentional killings in furtherance of a continuing criminal enterprise, and § 924(c) firearm counts. Originally sentenced to life terms on the drug-conspiracy and homicide counts, they later obtained substantial sentence reductions from the district court on both the covered drug counts and the non‑covered homicide counts.

The government appealed, arguing that § 404 authorizes reductions only for covered offenses and, alternatively, that the homicide sentences were not part of any “sentencing package.” The Sixth Circuit vacated the reduced sentences and remanded, holding that § 404 permits courts to reduce non‑covered counts only when they are part of a sentencing package interdependent with a covered offense. The court also rejected arguments that the government had waived/forfeited its challenge or that the mandate from a prior appeal barred consideration of non‑covered counts on remand. Judge Murphy dissented, concluding the statute never permits reductions of non‑covered counts and that the record demonstrated no sentencing-package interdependence in any event.

Summary of the Opinion

Forfeiture/Waiver: The government neither waived nor forfeited its challenge to reductions on the homicide counts. Although the government raised some arguments late, the district court addressed the merits sufficiently to warrant appellate review, and the issue was fully briefed on appeal.
Mandate Rule: In Gordon’s earlier appeal, the Sixth Circuit issued a general remand that did not bar the district court from considering whether non‑covered counts could be reduced on a theory other than “covered offense” status (e.g., the sentencing‑package doctrine).
Holding on § 404 Scope: Section 404(b) authorizes a court to “impose a reduced sentence” for non‑covered offenses only when those offenses are part of a sentencing package interdependent with a covered offense. The court formally adopts the sentencing‑package doctrine for First Step Act resentencings in this circuit.
Application and Disposition: The district court did not sufficiently explain whether, and how, each homicide sentence was interdependent with the covered crack-conspiracy sentence. The Sixth Circuit vacated all resentencing judgments and remanded for the district court to make case‑specific sentencing‑package findings consistent with the opinion.
Dissent: Judge Murphy would hold that § 404 never permits reductions of non‑covered offenses, would find no interdependence here given the then‑mandatory Guidelines’ life term for murder, and would reverse outright rather than remand.

Analysis

Precedents Cited and Their Influence

First Step Act Framework and Discretion: Concepcion v. United States underscores the breadth of district court discretion once eligibility is established and the absence of extra-textual limits in § 404(b), aside from § 404(c)’s explicit constraints. The majority uses Concepcion to caution against importing limitations not found in the text, while also recognizing that discretion operates only after eligibility is properly determined.
Eligibility and Appellate Standards: Boulding and Flowers reflect the Sixth Circuit’s pattern: eligibility is a legal question reviewed de novo; the ultimate decision to reduce is discretionary. The court stays within this structure in defining the scope of § 404(b).
Sentencing‑Package Doctrine Lineage: The court draws on Pasquarille v. United States (a § 2255 case) and Greenlaw v. United States to recognize the practical reality that sentences on multiple counts can be interdependent parts of a global sentencing plan. Dean v. United States further illustrates that courts may calibrate one sentence in light of another (e.g., mandatory consecutive terms), which can create interdependence. The opinion relies on these cases to anchor the doctrine within everyday sentencing practice.
Supporting Circuit Authority: The Seventh Circuit (Curtis, Hudson) and Fourth Circuit (Richardson) endorse applying the sentencing‑package doctrine in § 404 resentencings, reasoning that sentences are often imposed as integrated packages and that excluding non‑covered counts would add extra-textual constraints. The Eighth Circuit (Spencer) recognized a similar principle in a footnote.
Contrary Circuit Authority: The Second (Martin, Young), Tenth (Mannie, Gladney), and Eleventh (Baptiste) Circuits read § 404 as limited to a single count’s sentence, emphasizing that courts impose separate sentences per count and that § 3582(c) allows modifications only when expressly authorized—something they find lacking for non‑covered counts. The Sixth Circuit respectfully but expressly parts ways, finding those readings unpersuasive in light of text, context, and sentencing practice.
Textual/Contextual Guides: The majority also cites Sturgeon v. Frost (text and context drive interpretation) and Smith v. United States (Congress could have drafted narrower language but did not). Together, they support reading “impose a reduced sentence” to accommodate integrated resentencing of interdependent counts rather than a cramped one‑count‑only rule.
Mandate Rule and Remand Scope: The panel treats Gordon’s earlier remand as general, not limited, drawing on Moored, Purdy, Campbell, and O’Dell. Because the court’s earlier decision resolved only that homicide was not itself a covered offense, the district court remained free to consider non‑covered counts on other grounds (like packaging) during resentencing.
Forfeiture vs. Waiver: Relying on Hamer, Noble, Clariot, and Blanchet, the court finds no waiver and declines to find forfeiture where the district court addressed the merits and the issue was fully briefed on appeal.
Finality of Sentences: The panel notes Dotz to explain the district court’s lack of authority to reconsider a sentence after the resentencing hearing concluded; that point underscores procedural boundaries even as the substantive § 404 issue proceeds on appeal.

Legal Reasoning

The majority’s interpretive core is careful: § 404(b) authorizes a district court that “imposed a sentence for a covered offense” to “impose a reduced sentence as if” the Fair Sentencing Act’s reforms had applied at the time. From this:

No boundless resentencing: The court rejects the defendants’ expansive reading that once a covered offense is present, a court can reduce any sentence on any count (or even in other cases). That view is untethered to § 404(b)’s purpose—resentencing “as if” the Fair Sentencing Act’s sections 2 and 3 applied—and would effectively erase the covered/non‑covered distinction.
But more than one-count-only: At the same time, the court rejects the government’s absolute position that non‑covered counts are categorically beyond reach. Considering text, context, and practical sentencing realities, the court formalizes the sentencing‑package doctrine for § 404 resentencings. Where the sentences were interdependent—reflecting a single, integrated sentencing plan—a court may reduce non‑covered counts alongside the covered count.
Why packaging aligns with § 404: In ordinary usage, “sentence” is the “punishment” imposed, and in multi-count cases judges often craft a global sentence, calibrating terms across counts to achieve an aggregate outcome fitting the § 3553(a) factors. Packaging vindicates the statutory “as if” requirement by allowing courts to reconstruct the integrated plan as it would have been had the Fair Sentencing Act’s crack thresholds applied.
Limits, not plenary do‑over: The court emphasizes this is not a license for de novo plenary resentencing. Packaging authorizes adjustments on non‑covered counts only when the record supports interdependence with the covered offense. District courts retain discretion—and may decline to reduce—after assessing § 3553(a), even if eligibility via packaging exists. Flowers remains the guidepost for discretion.

Applying this framework, the panel concludes the district court did not explain whether the life sentences on the homicide counts were actually interdependent with the crack-conspiracy sentence. Because the government raised the packaging issue (albeit late) and the district court ultimately commented on the merits, and because the record suggests complexity (e.g., mandatory‑Guidelines era life terms for murder, the interaction with concurrent sentences, and potential grouping questions raised at least by Brown), the court remands for the district court to make defendant‑specific findings on interdependence.

The Dissent’s Approach

Judge Murphy would foreclose reductions of non‑covered counts entirely under § 404, relying on:

Plain text: The phrase “impose a reduced sentence” must refer back to the earlier phrase “a sentence for a covered offense,” especially given the singular “a sentence.” On that reading, § 404(b) simply does not extend to non‑covered counts.
Baseline finality and express authority: Under 18 U.S.C. § 3582(c), sentences may be modified only when expressly authorized; § 404(b) expressly authorizes reductions for covered offenses and is silent as to non‑covered offenses, so the default rule bars modifying those sentences.
Contrast with § 2255: Unlike § 2255, which authorizes vacatur of the “judgment” and a full “resentenc[ing],” § 404 has no “judgment‑wide” language. Sixth Circuit cases like Smith and Alexander have recognized that difference when rejecting broad resentencing theories.
No interdependence in this record: Even if packaging were conceptually available, the mandatory Guidelines imposed life for murder, independent of the drug-conspiracy sentence; thus, the homicide sentences were not affected by the drug count and cannot be “packaged” with it. Judge Murphy would reverse rather than remand.

Impact and Practical Implications

Binding rule in the Sixth Circuit: District courts may reduce non‑covered counts in § 404 proceedings only if they find, on the record, that those counts were interdependent with the covered offense as part of a single sentencing package.
Heightened record focus: On remand—and in future cases—courts should scrutinize original sentencing transcripts, statements of intent, count-by-count structuring, and whether the judge explicitly calibrated one sentence in light of another (e.g., to achieve an aggregate outcome), as referenced in Dean and Curtis.
Mandatory-Guidelines-era cases: Where life was mandatory for a non‑covered count (e.g., § 2A1.1 for murder), establishing interdependence will be difficult. The dissent highlights this as a near categorical barrier; the majority leaves it to district courts to resolve factually.
Guidelines grouping: Grouping can be an “indicia” of interdependence (as Curtis suggests), though murder is generally excluded from grouping under § 3D1.2. Parties should address whether any grouping actually occurred and whether it matters to interdependence.
Government objections: While the court declined to find waiver/forfeiture here, timeliness matters. The opinion nonetheless signals that late-ripening objections may be heard when the district court has addressed the merits and the parties have fully briefed the issue on appeal.
Mandate management: Appellate remand language matters. Absent an explicit limitation, remands will be treated as general, allowing district courts to consider alternative eligibility routes (e.g., packaging) not foreclosed by the prior decision.
Inter‑circuit split: This decision sharpens a split with the Second, Tenth, and Eleventh Circuits. The Supreme Court may eventually resolve whether § 404 accommodates the sentencing‑package doctrine.

Complex Concepts Simplified

Covered offense (First Step Act § 404): A conviction whose statutory penalties were modified by §§ 2 and 3 of the Fair Sentencing Act (primarily affecting crack-cocaine thresholds). Only these are automatically within § 404’s ambit.
Non‑covered offense: Any conviction not affected by the Fair Sentencing Act’s statutory changes (e.g., § 848(e)(1)(A) intentional killing).
Sentencing‑package doctrine: The idea that in multi-count cases, the district court often crafts an integrated “package,” setting sentences on some counts in light of others to achieve a single, aggregate punishment. If one count changes, the package may be reconfigured so the total sentence remains appropriate.
Concurrent‑sentence doctrine: A prudential doctrine allowing courts to decline review when a defendant is already serving an equal or longer concurrent sentence on another count; it does not define resentencing power under § 404 and was not the basis for the Sixth Circuit’s holding.
Waiver vs. forfeiture: Waiver is an intentional relinquishment of a known right and precludes review; forfeiture is a failure to timely assert a right and may permit review (often for plain error). The court found neither here.
Mandate rule and remand scope: Lower courts must adhere to appellate mandates. A limited remand tightly confines the issues; a general remand permits broader consideration consistent with the appellate opinion.
Grouping (Guidelines): Some counts are grouped for guideline calculation when closely related. Murder is generally excluded from grouping, but where grouping or other record features show interdependence, that may support a packaging finding.

Guidance for the District Court on Remand

Identify whether, at the original sentencing, the court fashioned a global sentence by calibrating any homicide term with the drug-conspiracy term (e.g., statements indicating the court sought a particular aggregate length).
Assess whether any mandatory components (e.g., mandatory life under § 2A1.1, mandatory consecutive § 924(c) terms) left no room for calibrating the homicide term in light of the conspiracy term—potentially negating interdependence.
Consider any grouping or integration in the original guideline calculation and whether that actually influenced count‑specific sentences.
If interdependence is found, exercise discretion under § 3553(a) and Concepcion to determine whether, even then, the sentencing package should be reconfigured or left as is.

Conclusion

The Sixth Circuit’s decision establishes a clear, two‑sided rule for First Step Act resentencings. On one side, § 404 does not open the door to wholesale resentencings untethered to the Fair Sentencing Act’s reforms. On the other, it recognizes that where sentencing was truly packaged, district courts may adjust non‑covered counts in tandem with covered ones to reconstruct the original global sentence “as if” the Fair Sentencing Act had always applied. This opinion thus harmonizes statutory text with sentencing reality and provides a structured pathway for district courts to follow on remand. The dissent offers a starkly textual alternative—categorically barring reductions for non‑covered counts—and underscores the practical problem of showing interdependence for mandatory‑Guidelines-era murder sentences. The split with other circuits deepens, positioning this issue for further appellate and possibly Supreme Court review. For now, in the Sixth Circuit, the decisive question is factual and record‑based: were the original sentences genuinely interdependent parts of a single sentencing package?