Sixth Circuit Endorses Sentencing-Package Resentencing Under the First Step Act: Non‑Covered Counts May Be Reduced Only If Interdependent (United States v. Polk)

Sixth Circuit Endorses Sentencing-Package Resentencing Under the First Step Act: Non‑Covered Counts May Be Reduced Only If Interdependent (United States v. Polk)

Introduction

In United States v. Gene Polk (consolidated with appeals by Edward Dale, John Gordon, and Gregory Brown), the U.S. Court of Appeals for the Sixth Circuit addressed the scope of district court authority to reduce sentences under Section 404 of the First Step Act of 2018. The case arises from the prosecution of the Detroit-based “Best Friends” gang, whose members were convicted in the mid‑1990s of a crack-and-powder cocaine conspiracy, multiple § 924(c) firearms counts, and intentional killings in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e)(1)(A).

The defendants sought sentence reductions after the Fair Sentencing Act of 2010 narrowed the crack–powder disparity and the First Step Act made those changes retroactive. The district court reduced not only the sentences for the covered drug conspiracy but also the sentences for the non‑covered homicide counts, concluding it had authority to revisit the “total sentence.” The government appealed, arguing:

  • Section 404 does not authorize reductions on non‑covered offenses (here, homicides).
  • Even if it did, the homicide counts here were not part of a single “sentencing package.”
  • As to Gordon, a prior mandate limited the district court’s authority on remand.
  • All reductions were substantively unreasonable.

In a published opinion authored by Judge White and joined by Judge Stranch, the Sixth Circuit announced a consequential holding: Section 404 authorizes reductions to some non‑covered counts, but only if they were part of an interdependent “sentencing package” with a covered count. The court vacated the new sentences and remanded for the district court to determine whether the homicide sentences were in fact part of such packages. Judge Murphy dissented, arguing Section 404 does not permit reduction of any non‑covered count under any circumstances and would have reversed outright.

Summary of the Opinion

The Sixth Circuit resolved three principal issues:

  1. Waiver/Forfeiture: The government did not waive or forfeit its challenge to the district court’s authority to reduce the homicide sentences. Although the government raised its sentencing-package argument late, the district court addressed the issue’s merits, the matter was fully briefed on appeal, and the prudential purposes of forfeiture did not justify preclusion.
  2. Mandate Rule (Gordon): The prior remand in Gordon’s case was general, not limited. It did not preclude the district court from addressing whether non‑covered counts could be reduced under an alternative theory (sentencing package), so long as the court heeded the prior holding that homicide was not a “covered offense.”
  3. Scope of Section 404: The First Step Act does not permit across‑the‑board resentencing on all counts whenever a covered offense is present. But it authorizes reductions on non‑covered counts if, and only if, those counts formed part of an interdependent “sentencing package” with the covered offense. Because the district court did not explain how the homicide sentences were packaged with the drug conspiracy sentences, the Sixth Circuit vacated and remanded.

Bottom line: The court formally adopts the sentencing‑package doctrine in the First Step Act context but channels it through an interdependence inquiry. The panel did not reach substantive reasonableness because the predicate legal question must be resolved first on remand.

Analysis

Precedents Cited and Their Influence

  • Fair Sentencing Act and First Step Act Framework:
    • Terry v. United States (eligibility turns on whether the statutory penalties for an offense were modified by the Fair Sentencing Act).
    • Concepcion v. United States (district courts have broad discretion at resentencing under § 404, constrained expressly only by § 404(c); text and structure do not add extra‑textual limits).
  • Sentencing-Package Doctrine and Analogous Authorities:
    • Dean v. United States (a court may consider a mandatory consecutive sentence when setting the term on another count—recognizes holistic “total punishment” thinking).
    • Greenlaw v. United States (when some but not all counts are vacated, appellate courts may permit the district court to reconfigure the overall sentencing plan).
    • Pasquarille v. United States (6th Cir.) (in the § 2255 context, where sentences are interdependent, courts may revisit the aggregate sentence to ensure appropriateness).
  • Sixth Circuit’s Prior Guidance and Remand Practice:
    • United States v. Boulding (eligibility questions under § 404 reviewed de novo; separate from discretion).
    • United States v. Flowers (eligibility does not entitle a defendant to relief; resentencing remains discretionary).
    • United States v. O’Dell, Campbell, Moored, Purdy (mandate rule; limited vs. general remand; law-of-the-case principles guide scope on remand).
  • Other Circuits on § 404 and Sentencing Packages:
    • United States v. Curtis, United States v. Hudson (7th Cir.) and United States v. Richardson (4th Cir.) adopt sentencing‑package eligibility for non‑covered counts when interdependent.
    • United States v. Spencer (8th Cir.) suggests the doctrine applies, albeit briefly.
    • United States v. Young (2d Cir.), United States v. Gladney (10th Cir.), United States v. Baptiste (11th Cir.) reject any § 404 authority to reduce non‑covered counts; the Sixth Circuit finds these unpersuasive.
  • Standards and Preservation:
    • Hamer, Noble, Bowers, Clariot (distinguish waiver and forfeiture; court may reach forfeited issues in appropriate circumstances, especially where addressed below and fully briefed).

Legal Reasoning

The court’s statutory analysis proceeds in calibrated steps.

  1. Rejecting an “anything goes” theory: The defendants’ broad reading—that once a court resentences any covered offense it may reduce any other sentence it ever imposed—conflicts with § 404’s text and purpose. Section 404(b) authorizes imposing “a reduced sentence as if” the Fair Sentencing Act had been in effect at the time of “the covered offense.” The language ties the resentencing exercise to the covered offense and does not confer boundless resentencing power over unrelated convictions or separate cases.
  2. Adopting a targeted sentencing‑package reading: The court embraces the middle approach: a district court may reduce non‑covered counts only when they were interdependent with the covered offense as part of a sentencing package. This reading draws support from:
    • The ordinary meaning of “sentence” as punishment, which in practice can be packaged across multiple counts to achieve a “total punishment.”
    • Concepcion’s teaching against inventing extra‑textual limits and in favor of ordinary sentencing discretion once eligibility exists.
    • Background principles of holistic sentencing acknowledged in Dean and Greenlaw.
    • Sixth Circuit precedent in Pasquarille recognizing interdependent packages in a different resentencing statute (§ 2255), whose logic sensibly carries over here.
    • Other circuits (Fourth and Seventh) that have reached congruent readings under § 404.
  3. Interdependence is key and fact‑specific: The opinion underscores that a court is not required to reduce every sentence in a package. Rather, it must decide whether the original sentences were interdependent—e.g., the judge crafted a global term, used concurrent terms on one count because another already yielded life, or structurally balanced terms in light of mandatory consecutive sentences (like § 924(c))—and then exercise discretion under § 3553(a).
  4. Mandate rule in Gordon’s case: The panel explains that its prior remand—vacating only the denial of relief as to Count 1 but remanding “for further proceedings”—was a general remand. It permitted the district court to consider alternative grounds (like the sentencing‑package theory) so long as the court honored the earlier holding that homicide is not itself a “covered offense.”
  5. No waiver/forfeiture bar: Although the government’s timing was less than ideal, the district court engaged with the merits and the issue was fully briefed on appeal. The court therefore exercised its discretion to reach the merits.

Applying these principles, the panel found the record insufficiently clear on whether each defendant’s homicide sentence was in fact interdependent with the covered drug conspiracy sentence. It vacated and remanded for the district court to make that determination in the first instance.

The Dissent’s View

Judge Murphy would bar any reduction of non‑covered counts under § 404 for three reasons:

  • Textual constraint: Reading § 404(b) as a whole, “a reduced sentence” refers to the sentence for “the covered offense.” Coupled with the baseline prohibition on modifying imprisonment terms absent express statutory authorization (18 U.S.C. § 3582(c)), § 404 supplies authorization only for covered offenses, not others.
  • Statutory contrast with § 2255: Unlike § 2255, which expressly authorizes vacating the judgment and a full resentencing, § 404 contains no comparable text.
  • No interdependence here regardless: Even if the doctrine were available, the then‑mandatory Guidelines imposed life for § 848(e)(1)(A) murders, so the drug sentences could not have affected the homicide sentences. He would reverse outright.

Impact

This is a significant First Step Act decision in the Sixth Circuit. Its practical effects include:

  • Formal adoption of the sentencing‑package doctrine for § 404 cases: District courts may reduce non‑covered counts, but only upon a concrete, record‑based finding that the original sentences were interdependent with the covered offense.
  • Guidance for district courts on remand:
    • Identify evidence of interdependence: contemporaneous statements about “total punishment,” reasons for concurrency, reliance on mandatory consecutive terms (e.g., § 924(c)) when setting other counts, and whether the court effectively crafted a single global sentence.
    • Consider Guidelines structure: whether counts were grouped (recognizing that some serious offenses like murder are excluded from grouping) and whether the sentences reflect mutual influence.
    • Weigh that the Guidelines were mandatory in the 1990s—this may cut against interdependence where a count independently required life.
    • Even if eligible, decide anew under § 3553(a) whether a reduction is warranted, consistent with Flowers and Concepcion.
  • Strategic implications:
    • Defendants should marshal precise record evidence that the original sentencing judge tailored concurrent or consecutive terms to achieve a unified total punishment driven by the covered count.
    • The government will likely argue that serious non‑covered counts (e.g., § 848(e) murders) received mandatory life terms independent of drug counts, negating interdependence.
  • Mandate practice clarified: Limited language is required to confine district court action on remand; absent clear limits, remands are general.
  • Contributes to a deepening circuit split: Sixth (now aligned with Fourth and Seventh) allows sentencing‑package reductions for non‑covered counts; Second, Tenth, and Eleventh reject them. This inter‑circuit conflict heightens the possibility of Supreme Court review.

Complex Concepts Simplified

  • Covered offense (First Step Act § 404): An offense whose statutory penalties were modified by the Fair Sentencing Act of 2010 (e.g., certain crack cocaine offenses). Only sentences for these offenses are clearly eligible for reduction.
  • Non‑covered offense: Any conviction whose statutory penalties were not modified by the Fair Sentencing Act (e.g., § 848(e) murders). After this decision, such sentences may be reduced only if they were interdependent with a covered count as part of a sentencing package.
  • Sentencing‑package doctrine: Recognizes that judges often impose a set of interrelated sentences to achieve a total punishment. If one piece moves (e.g., a covered count is reduced), the court may adjust interconnected pieces.
  • Interdependence: A fact‑driven inquiry. Look for signs that the judge used one count’s sentence to balance another (for instance, relying on a mandatory consecutive term to lower another term, or using concurrency on one count because another count already ensured life).
  • Grouping (Guidelines § 3D1.2): Some counts are grouped to avoid double counting closely related conduct. Serious violent crimes like murder are typically excluded from grouping; lack of grouping does not foreclose interdependence but may make it harder to prove.
  • Concurrent-sentence doctrine: An appellate prudential doctrine allowing courts, in some contexts, to decline review when another concurrent sentence would keep the defendant in custody regardless. It does not bar § 404 eligibility.
  • Waiver vs. forfeiture: Waiver is the intentional surrender of a right; forfeiture is the failure to timely assert it. Forfeited issues may still be reviewed in appropriate circumstances, especially if the district court reached the merits and the issue is fully briefed.
  • Mandate rule; limited vs. general remand: A lower court must follow the appellate court’s mandate. A limited remand specifies the precise issues; a general remand permits consideration of all issues not decided or foreclosed by the appellate decision.
  • Dean principle: A sentencing judge may consider mandatory consecutive sentences (like § 924(c)) when deciding what term to impose on other counts, reflecting real‑world “total punishment” reasoning.

Conclusion

United States v. Polk (with co‑appellees Dale, Gordon, and Brown) establishes a pivotal precedent in the Sixth Circuit: a district court may reduce a non‑covered sentence under the First Step Act only when that sentence was interdependent with a covered sentence as part of a sentencing package. The court rejected both extremes—the view that § 404 opens the door to global resentencing on all counts and the view that it forecloses any reduction of non‑covered counts. The adopted middle path honors the statutory text (“as if” the Fair Sentencing Act had applied at the time of the covered offense) and the practical realities of federal sentencing (total‑punishment packages), while preserving district court discretion to deny relief even when eligibility exists.

By vacating and remanding, the Sixth Circuit requires district courts to do the granular work of determining interdependence from the original record and to explain any sentencing‑package findings. The decision aligns the Sixth Circuit with the Fourth and Seventh Circuits and deepens a circuit split with the Second, Tenth, and Eleventh Circuits—a split that may invite Supreme Court resolution. For practitioners, Polk significantly shapes § 404 resentencings: success on non‑covered counts will now turn on demonstrating, with precision, that the original sentences were intentionally bound together as parts of a unified whole.

Case Details

Year: 2025
Court: Court of Appeals for the Sixth Circuit

Comments