§ 404(b). Compare United States v. Curtis, 66 F.4th 690, 694 (7th Cir. 2023) (holding district court could issue a reduction for noncovered offense if it was grouped with covered offenses) and United States v. Spencer, 998 F.3d 843, 845 n.1 (8th Cir. 2021) (holding a modification of crack cocaine could permit sentence reduction on powder cocaine based on First Step Act if defendant was sentenced under a "sentencing package"), with United States v. Gladney, 44 F.4th 1253, 1262 (10th Cir. 2022) (holding the First Step Act prohibits a district court from reducing the sentence on a non-covered offense even if it was grouped together under the Sentencing Guidelines), United States v. Contrera, No. 20-4083-CR, 2022 WL 301784, at *1 (2d Cir. Feb. 2, 2022) (holding the First Step Act does not allow resentencing as to noncovered offense based on sentencing package doctrine because there is no statutory authorization to do so), and United States v. Files, 63 F.4th 920 (11th Cir. 2023) (holding First Step Act does not authorize a reduction based on sentencing package doc
purposes of the First Step Act. We review this question of statutory interpretation de novo. E.g., United States v. Curtis, 66 F.4th 690, 693 (7th Cir. 2023). After briefing concluded in this case, we answered this second question in Colon, 100 F.4th at 943-44, finding a § 848(a) conviction was not a "covered offense" eligible for relief by the Fair Sentencing Act.
Grouping also "prevent[s] multiple punishment for substantially identical offense conduct" by avoiding the multiple-sentence enhancement that would otherwise apply. Id.; see also United States v. Curtis, 66 F.4th 690, 692 (7th Cir. 2023) (discussing the policy underlying grouping).
The Court assumes, without deciding, that it has discretion to reduce the revocation sentence on all counts, including the § 924(c) count. But cf. United States v. Curtis, 66 F.4th 690, 694 (7th Cir. 2023) (holding a district court could not consider a § 924(c) sentence for resentencing under the First Step Act where the sentence imposed on that count was “distinct and disaggregated” from the sentence imposed on the covered crack cocaine offenses). Perez argues a reduction is warranted based on the § 3553(a) factors and his postsentencing rehabilitation.
This grouping under the Guidelines is another indication that Mr. McKenzie's covered and noncovered offenses were interconnected and interdependent-and would have been treated as such at sentencing. See Richardson, 96 F. 4th at 669 (quoting United States v. Curtis, 66 F.4th 690 (7th Cir. 2023) (noting that the “most common way to show interdependence would be to see if the counts were grouped for sentencing”) (cleaned up)).
As the Fourth Circuit acknowledged, grouping under the Guidelines is “perhaps the most common way to show interdependence.” Richardson, 2024 WL 1183539, at *7 (quoting United States v. Curtis, 66 F.4th 690, 694-95 (7th Cir. 2023)). Therefore, the Court concludes that the way the Guidelines grouped the defendant's covered and non-covered offenses supports the conclusion that his sentence functioned as a package.
The Fourth and Seventh Circuits have held that a district court may impose a reduced sentence for interconnected non-covered offenses so that the defendant receives a reduced aggregate sentence. See, e.g., United States v. Curtis, 66 F.4th 690, 694 (7th Cir. 2023); United States v. Hudson, 967 F.3d 605 (7th Cir. 2020); United States v. Gravatt, 953 F.3d 258, 264 (4th Cir. 2020). Meanwhile, the Second, Tenth, and Eleventh Circuits have held that the First Step Act's relief is limited to covered offenses and cannot be extended to non-covered offenses, even where the offenses were grouped together to form a sentencing package.