govinfo:USCOURTS-mied-2_92-cr-81127-44

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 
SOUTHERN DIVISION 
 
UNITED STATES OF AMERICA, 
 
   Plaintiff,    Case Number 92-81127 
v.        Honorable David M. Lawson 
 
EDWARD DALE, JOHN GORDON, 
GENE POLK, and GREGORY BROWN, 
 
   Defendants. 
________________________________________/ 
 
OPINION AND ORDER DENYING MOTIONS TO VACATE SENTENCES UNDER 28 
U.S.C. § 2255, GRANTING IN PART MOTIONS BY DEFENDANTS DALE, GORDON, 
AND POLK TO REDUCE SENTENCES UNDER THE FAIR SENTENCING ACT, 
GRANTING IN PART DEFENDANT BROWN’S MOTION FOR RECONSIDERATION, 
AND DENYING VARIOUS PROCEDURAL MOTIONS 
 This case is before the Court on the multiple  post-conviction motions by four defendants 
convicted by juries of drug cons piracy and homicide offenses.  Defendants Edward Dale, John 
Gordon, Gene Polk, and Gregory Brown currently ar e serving life sentences for their roles in a 
violent drug trafficking organization, the “Best Friends,” wh ich began in the mid-1980s and was 
responsible for at least eight homicides.  With th e permission of the court of appeals, they filed 
successive motions under 28 U.S.C. § 2255, c ontending that their life sentences are 
unconstitutional under Miller v. Alabama , 567 U.S. 460 (2012), and Montgomery v. Louisiana , 
577 U.S. 190, 136 S. Ct. 718 (2016), because they became involved with the Best Friends when 
they were juveniles.   Those motions will be denied because they were filed out of time.   
 The defendants also filed motions for sentence  reductions under the First Step Act of 2018.  
The trial judge, the Honorable Avern Cohn, denied the First Step Act motions filed by Gordon and 
Brown.  Gordon appealed Judge Cohn’s denial, and the Sixth Circuit reversed the decision in part 
as to Gordon’s conviction of conspiracy to distri bute cocaine and cocaine base in violation of 21 
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U.S.C. §§ 846 and 841.  Brown filed a motion for reconsideration of that  order.  Because the 
defendants were sentenced to prison for an offe nse covered by the First St ep Act, the Court may 
resentence them to lesser prison terms if the current circumstances, including intervening changes 
in fact and law, point in that direction.  The de fendants have shown that the relevant factors may 
warrant a sentence reduction, so the Court will grant in part their motions under the FSA.   
 Defendant Brown also has filed a separa te motion to reduce his sentence under the 
compassionate release provisions of 18 U.S.C. § 3582(c)(1)(A).  However, he has not established 
the extraordinary and compelling reasons that must be shown to obtain that separate relief.  That 
motion will be denied.   
I.  Background 
 Dale, Gordon, Polk, and Brown joined the Best Friends drug cons piracy in 1986 as 
juveniles: Dale was 17 years old, Polk was 16, Gordon was 15, and Brown was 14.   However, 
they were charged as adults with continuing to engage in the conspiracy until 1995, and with aiding 
and abetting intentional killings in furtherance of the continuing criminal enterprise.   
 In 1995, after a trial that lasted 32 days a nd involved around 70 witnesses, a jury convicted 
Dale, Gordon, and Polk of three crimes: (1) conspiracy to dist ribute cocaine and cocaine base, in 
violation of 21 U.S.C. § 846; (2) intentional k illing in furtherance of  conducting a continuing 
criminal enterprise, in violation of 21 U.S.C. § 848(e)(1)(A); and (3) using a firearm during and in 
relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c).  The jury never was asked 
to determine the type or quantity of drugs fo r which each defendant was accountable, and those 
facts were not determined beyond  a reasonable doubt by the fact finder.  Instead, those drug 
quantities were assessed as sentencing factors (not crime elements) by the probation department 
during the presentence investigation.  Dale’s and Polk’s presentence reports assessed responsibility 
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for more than 1.5 kilograms of crack cocaine each; and Gordon’s presentence report attributed at 
least 500 grams of crack cocaine to him.  The following year, a jury convicted Brown of the same 
crimes.  Again, the jury never found that he possessed any specific quantity of drugs, but his 
presentence report assessed responsibility for at least 50 grams to 150 grams of crack cocaine.  The 
defendants each were sentenced under 21 U.S.C.  § 841(b)(1)(A), which at the time of their 
conviction and sentencing was triggered by the distribution of at least 50 grams of crack.   
 Although the drug quantities varied am ong the defendants, under the Sentencing 
Guidelines all four defendants’ drug conspiracy convictions were  cross-referenced to the first-
degree murder offense section, resulting in a base  offense level of 43 on all drug conspiracy and 
intentional killing counts.  See U.S.S.G. §§ 2A1.1, 2D1.1(d)(1) (1997).  Only Brown was subject 
to an enhanced mandatory-minimum penalty on his drug conspiracy conviction alone.  Judge Cohn 
imposed concurrent life sentences on all four defendants, as was mandated by the sentencing 
regime in effect at the time.  Dale received four concurrent life sentences (one for the drug 
conspiracy conviction; three for intentional killing convictions) and consecutive terms of five and 
20 years on two firearm convictions under 18 U.S.C. § 924(c).  Polk also received four concurrent 
life sentences (one for the drug c onspiracy conviction; three for intentional killing convictions) 
and a consecutive 45-year prison term on three section 924(c) convictions.  Gordon received two 
concurrent life sentences (one for the drug conspiracy conviction; one for the intentional killing 
conviction) as well as a consecutive term of five years on one section 924(c) firearms conviction.  
Brown received two concurrent life sentences (one for the drug conspiracy conviction; one for the 
intentional killing conviction) as well as a c onsecutive term of five years on one section 924(c) 
firearms conviction.   
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 The defendants’ convictions and sentences we re affirmed on direct appeal on June 2, 1999 
and June 20, 2000.  United States v. Polk, 1999 WL 397922 (6th Cir. Jun. 2, 1999); United States 
v. Brown, 221 F.3d 1336 (6th Cir. 2000).  They since have filed multiple motions and have returned 
to the court of appeals numerous times.  Each of the four defendants has filed a successive motion 
to vacate his sentence under 28 U.S.C. § 2255, argui ng that because their participation with the 
Best Friends began when they were juveniles, their life sentences are unconstitutional under Miller 
v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016).  The Sixth 
Circuit granted the defendants leave to file these successive motions.  In November 2017, Gordon 
filed a motion to consolidate the petitions.  The government filed a consolidated response to the 
four petitions because they presented identical issues.   
 More recently, in 2019, the defendants each m oved for relief under the First Step Act.  
Judge Cohn denied Gordon’s and Brown’s moti ons, concluding that b ecause the defendants’ 
sentencing guideline range was calculated under the intentional killing section, U.S.S.G. § 2A1.1, 
they were ineligible for relief under the FSA.  Brown moved for reconsideration, and Gordon filed 
an appeal.   
  On appeal, Gordon argued that his inte ntional killing conviction under 21 U.S.C. § 
848(e)(1)(A) is covered by the Firs t Step Act, rendering him eligib le for a sentence reduction, 
because section 848(e)(1)(A) requires the commissi on of an offense that violates section 
841(b)(1)(A), and because the Fair  Sentencing Act modified the crack-cocaine th resholds for 
penalties set forth in section 841(b)(1)(A).  The Sixth Circuit rejected that argument but found that 
Gordon in fact was eligible for a sentence reduction under the First Step Act for his drug conspiracy 
conviction.  ECF No. 2457, PageID.19480- 81.  It also rejected the government’s argument that 
because Gordon is serving a concurrent life se ntence on his intentional killing conviction, he 
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should be found ineligible for First Step Act relief under the concurrent-sentencing doctrine.  The 
court of appeals explained that, if Gordon pr evailed on his successive section 2255 motion, the 
First Step Act could impact the ultimate sentence he receives despite his concurrent life sentences.  
Id. at PageID.19481.  Thus, the court of appeals vacated Judge Cohn’s or der on count 1 and 
remanded the case for further proceedings.   
 The defendants each contend that they have reformed in prison.  Dale, Gordon, and Brown 
have submitted letters from prison officials attesting to their rehabilitation and letters from friends 
and family members attesting to their community support.  They have spotless or near-spotless 
disciplinary records and appear to  have taken full advantage of  the educational and vocational 
opportunities available to them while incarcerated, suggesting that they are prepared to work in 
and contribute to society if released from prison.   
 In pursuit of that relief, and before the Court for adjudication, ar e motions by defendants 
Dale, Gordon, Polk, and Brown to vacate their sentences under 28 U.S.C. § 2255; motions by Dale, 
Gordon, and Polk to reduce thei r sentences under the First St ep Act; and Brown’s motion to 
reconsider the denial of his First Step Act motion.  In addition, Gordon has moved to expedite and 
consolidate the proceedings, and Brown has moved to  appoint an expert w itness, take judicial 
notice of certain opinions issued  by other federal courts, and hol d his motion for reconsideration 
in abeyance.  Brown also has pending a motion  for compassionate release under 18 U.S.C. § 
3582(c)(1)(A).   
 Except for Brown’s compassionate release motion, the defendants present nearly identical 
grounds on their motions seeking shorter sentences, so the Court will address their motions 
together.   
 
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II.  Section 2255 Motions 
 The asserted bases for the defendants’ motions  to vacate their sentences under section 2255 
is that they first joined the drug conspiracy as juveniles, and their mandatory life prison sentences 
violate the rule in Miller v. Alabama, which held that mandatory life sentences without parole for 
juvenile homicide offenders cont ravenes the Eighth Amendment.  See Miller, 567 U.S. at 489.  
The court of appeals granted each of these defend ants leave to file a second or subsequent 2255 
motion on that ground.  This Court’ s review of a second or succes sive motion to vacate sentence 
is more exacting than the appellate court’s, how ever, because the court of appeals may authorize 
a filing based on a “‘prima facie showing’ that the application satisfies the statutory standard.  But 
to survive dismissal in district court, the application must actually ‘sho[w] that the claim satisfied 
the standard.’”  Tyler v. Cain, 533 U.S. 656, 661 n.3 (2001) (citations omitted).   
 A federal prisoner challenging his sentence under section 2255 must show that the sentence 
“was imposed in violation of the Constitution or laws of the United States,” the sentencing court 
lacked jurisdiction, the sentence exceeds the maximum penalty allowed by law, or it “is otherwise 
subject to collateral attack.”  28 U.S.C. § 2255(a); Short v. United States, 471 F.3d 686, 691 (6th 
Cir. 2006).  But section 2255 has a one-year statute of limitations , which is measured from the 
latest of: 
(1) the date on which the judgment of conviction becomes final; 
 
(2) the date on which the impediment to making a motion created by governmental 
action in violation of the Constitution or laws of the United States is removed, 
if the movant was prevented from making a motion by such governmental 
action; 
 
(3) the date on which the right  asserted was initially recognized by the Supreme 
Court, if that right has been newly recognized by the Supreme Court and made 
retroactively applicable to cases on collateral review; or 
 
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(4) the date on which the facts supporting the claim or claims presented could have 
been discovered through the exercise of due diligence. 
 
28 U.S.C. § 2255(f).   
 The timeliness of the section 2255 motions by these four defendants is measured by 
subparagraph 3, which means that th e defendants must have filed th eir latest motions within one 
year of “the date on which the right asserted was initially recognized by the Supreme Court.”  
Brown filed his motion in November 2016.  Gordon and Dale filed theirs in December 2016.  And 
Polk filed his in January 2017.  If Miller is the case that establish the “newly recognized” right on 
which they rely, the motions are untimely.  Miller was decided in 2012.   
 Miller is the first Supreme Court decision to hold that mandatory lif e sentences without 
parole for juvenile offenders violates the Ei ghth Amendment’s Cruel a nd Unusual Punishment 
Clause.  That case marked a waypoint in the “evolving standards of decency that mark the progress 
of a maturing society” from which th e Eighth Amendment draws its meaning.  Trope v. Dulles, 
356 U.S. 86, 101 (1958).  The Supreme Court be gan its development of the jurisprudence 
addressing juvenile offenders in the mid-2000s in a line of cases that held that the Constitution 
requires that juveniles be treated with more leniency than adults.  Compare Stanford v. Kentucky, 
492 U.S. 361 (1989) (holding that the imposition of capital punish ment on an individual for a 
crime committed at 16 or 17 years of ag e did not violate th e Eighth Amendment) with Roper v. 
Simmons, 543 U.S. 551 (2005) (abrogating Stanford and holding that executing individuals under 
18 years of age at the time of their capital crimes violated the Eighth Amendment) and Graham v. 
Florida, 560 U.S. 48 (2010) (holding that the Eighth Amendment prohibits the imposition of a life 
without parole sentence on juvenile offenders who did not commit homicides).   
 The 2012 Miller decision represented a furt her step in that direct ion.  In that case, the 
Supreme Court identified three characteristics that render juveniles “constitutionally different from 
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adults for purposes of sentencing.”  Miller, 567 U.S. at 471.  First, juveniles lack maturity and 
have “‘an underdeveloped sense of responsibil ity,’ leading to recklessness, impulsivity, and 
heedless risk-taking.”  Id. at 471 (quoting Roper, 543 U.S. at 569).  Second, “children ‘are more 
vulnerable . . . to negative influences and outside  pressures,’” have “limited ‘contro[l] over their 
own environment,’ and lack the ability to extricate themselves from horrific, crime-producing 
settings.”  Ibid. (quoting Roper, 543 U.S. at 569).    Finally, a juvenile’s “character is not as ‘well 
formed’ as an adult’s; his traits  are ‘less fixed’ and his actions less likely to be ‘evidence of 
irretrievabl[e] deprav[ity].’”  Ibid. (quoting Roper, 543 U.S. at 570).  Four years later, the Supreme 
Court recognized that Miller announced a new rule of substantive constitutional law and declared 
that it applies retroactively.  Montgomery v. Louisiana, 577 U.S. 190, 208-09 (2016).   
 The defendants argue that the one-year limitations period should not start until January 26, 
2016, when the Supreme Court decided Montgomery and made the substantive rule of Miller 
retroactive on collateral review.  See Montgomery, 577 U.S. at 206.  That would not save Polk’s 
motion, which was filed a year and five days after Montgomery was decided.  But more to the 
point, the retroactivity recognition date does not establish the beginning of  the limitation period.  
Section 2255(f)(3) “unequivocally identifies one, and only one, date from which the 1-year 
limitation period is measured: ‘the date on which the right asserted was initially recognized by the 
Supreme Court.’”  Dodd v. United States , 545 U.S. 353, 357 (2005) (quoting 28 U.S.C. § 
2255(f)(3)); see also Raybon v. United States, 867 F.3d 625, 630 (6th Cir. 2017) (citing Dodd, for 
the proposition that “§ 2255(f)(3) is  clear — relief is available one year after the Supreme Court 
initially recognizes the right”).  The date on which the right as serted was made retroactively 
applicable is irrelevant.  Dodd, 545 U.S. at 357.  Although that ru le has “the potential for harsh 
results in some cases,” including this one, the legislative text compels that result.  Ibid.  
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 Gordon contends, however, that Montgomery did not simply make Miller retroactively 
applicable, but rather it “signifi cantly clarified” the ruling.  Citing the Supreme Court’s decision 
in Tatum v. Arizona, --- U.S. ---, 137 S. Ct. 11, 12 (2016) (Sotomayor, J., concurring in the decision 
to grant, vacate, and remand), he contends that Montgomery requires sentencing courts to evaluate 
“more than mere consideration of a juvenile offender’s age before the imposition of a sentence of 
life without parole.”  137 S. Ct. at 13.  And the Sixth Circuit has allowed that the Supreme Court 
described the reach of its Miller decision more broadly in Montgomery.  See Atkins v. Crowell , 
945 F.3d 476, 478 (6th Cir. 2019) (noting that, although the Miller Court repeatedly disclaimed 
the reach of its holding by warning that it did “ not categorically bar a penalty for a class of 
offenders,” the Montgomery Court found that “Miller drew a line between children whose crimes 
reflect transient immaturity and those rare children whose crimes reflect irreparable corruption”) 
(quoting Miller, 567 U.S. at 465; Montgomery, 136 S. Ct. at 734)); see also Mathena v. Malvo , 
139 S. Ct. 1317 (2019) (granting  certiorari  on the question whether Montgomery expanded 
Miller’s holding; the parties later stipul ated to dismiss the case).  But the Sixth Circuit also has 
interpreted Montgomery’s holding to be that “Miller’s prohibition on mandatory life without parole 
for juvenile offenders is indeed retroactive.”  Hill v. Snyder, 821 F.3d 763, 765 (6th Cir. 2016).  
Applying that reasoning, courts in this circuit have  denied similar sec tion 2255 motions as 
untimely.  See Stevenson v. Woods , 2019 WL 11753772, at *2 (6th Cir. May 30, 2019)  (finding 
untimely a habeas petition filed more than one year after the Miller decision); United States v. 
Thornton, 2020 WL 2832049, at *2 (E.D. Mich. May 12, 2020) (Friedman, J.) (same); Hill v. 
Rewerts, 2020 WL 248413, at *3 (E.D. Mich. Jan. 16, 2020) (Borman, J.) (same); Taylor v. Winn, 
2019 WL 2464529, at *3 (E.D. Mich. J une 13, 2019) (Michelson, J.) (same); Daniel v. Phillips, 
2021 WL 1794767, at *4 (W.D. Tenn. May 5, 2021) (same); Blocker v. Mays, 2019 WL 4773825, 
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at *4 (E.D. Tenn. Sept. 30, 2019) (same); Brooks v. Jordan, 2019 WL 8013865, at *3 (W.D. Ky. 
Oct. 1, 2019) (same), report and recommendation adopted , 2019 WL 6896912 (W.D. Ky. Dec. 
18, 2019).  This Court reaches the same conclusion.   
 Nonetheless, even if the defenda nts’ motions were timely filed, Miller does not provide the 
defendants with grounds for senten cing relief.  The second supers eding indictment charges the 
defendants with engaging in a drug conspiracy that began in 1986 and continued until 1995.  
Second Sup. Indictment, ECF No. 882, PageID.10278-79.  Although the defendants were juveniles 
when they first joined the cons piracy, they participated in a drug trafficking organization over a 
span of time that continued into their adulthood.  See, e.g., Dale PSR ¶ 17 (drug dealing in 1992 at 
22 years old); Gordon PSR ¶¶ 18-24 (drug deali ng from 1990-93 at the ages of 19 through 22); 
Polk PSR ¶ 26 (drug dealing in 1991 at 21 y ears old); Brown PSR ¶¶ 30-31 (drug dealing from 
1991-94 at the ages of 19 through 22).  It is well-esta blished that a defe ndant “who enters a 
conspiracy prior to his eighteenth birthday can be tried as an adult if he continues in the conspiracy 
after that time.”  United States v. Maddox , 944 F.2d 1223, 1233 (6th Cir. 1991) (citing United 
States v. Gjonaj , 861 F.2d 143, 144 (6th Cir. 1988)); see also United States v. Machen , 576 F. 
App’x 561, 565 (6th Cir. 2014).  Because conspiracy is a “continuing crime,” a participant whose 
participation spans into adulthood cannot be “insulated from adult responsibility for his criminal 
activity because he started young.”  Gjonaj, 861 F.2d at 144; see also Smith v. United States, 568 
U.S. 106, 111 (2013) (“Since conspir acy is a continuing offense, a defendant who has joined a 
conspiracy continues to violate the law through every moment  of [the conspiracy’s] existence 
. . . .”) (citations omitted).  Because the defendants were adult offenders in fact, albeit young ones, 
the rule in Miller cannot help them.   
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 The defendants respond that the logic of Miller nevertheless applies and warrants sentence 
reductions because their immaturity and “underdeveloped sense of responsibility” is what led them 
to engage in the “recklessness, impulsivity, and heedless risk-taking” of joining the conspiracy in 
the first place.  See Miller, 567 U.S. at 471 (quoting Graham v. Florida, 560 U.S. 48, 67-68 (2010), 
and Roper v. Simmons,  543 U.S. 551, 569 (2005)).  Accepting that argument, of course, would 
extend Miller’s holding, and an argument for extending a legal rule necessarily cannot serve as the 
basis for a second or successive section 2255 mo tion, which must be based on “a new rule of 
constitutional law.”  28 U.S.C. § 2255(h)(2).  Moreover, the Sixth Circuit has foreclosed that very 
argument, holding that Miller’s leniency for juveniles does not  migrate to young adulthood; the 
benchmark is chronological age.  United States v. Marshall , 736 F.3d 492, 499 (6th Cir. 2013) 
(“Using chronological age as the touchstone for determining whether an individual is a juvenile or 
an adult is the standard approach in our legal system.”); United States v. Hunter, 12 F.4th 555, 571 
(6th Cir. 2021) (observing that “H unter was not a minor at the time  of his offense, so his life 
sentence was legally valid”) (citing Jones v. Mississippi, --- U.S. ---, 141 S. Ct. 1307, 1317 (2021)).   
 The defendants’ latest motions to vacate their sentences under 28 U.S.C. § 2255 were filed 
out of time, and therefore they must be denied.   
III. First Step Act Motions 
A.  Eligibility 
 The four defendants also seek relief under the First Step Act.  Gordon and Brown filed 
their motions earlier, and Judge C ohn denied them.  However, the court of appeals reversed the 
denial of Gordon’s motion, and Brown has moved for reconsideration.   
 “Although a district court gene rally ‘may not modify a term  of imprisonment once it has 
been imposed,’ 18 U.S.C. § 3582(c), a court ma y do so under certain lim ited circumstances, 
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including ‘to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules 
of Criminal Procedure.’”  United States v. Hall , 661 F.3d 320, 322 (6th Cir. 2011) (quoting 18 
U.S.C. § 3582(c)(1)(B)). The defendants’ drug conspiracy convictions are among those that 
Congress has addressed “by statute.”  In section 2 of the Fair Sentencing Act of 2010, Pub. L. 111-
220, 124 Stat. 2372 (2010), Congress increased the qua ntity of crack necessary to trigger a ten-
year mandatory minimum sentence from 50 grams to 280 grams.  Dorsey v. United States , 567 
U.S. 260, 269 (2012); Pub. L. 111-220, 124 Stat. 2372 § 2(a)(2).  Then, in 2018 Congress passed 
the First Step Act; in section 404 of the Act, the Fair Sentencing Act’s statutory changes for crack 
cocaine offenses were made retroactive to defendants who were sentenced before August 3, 2010.  
United States v. Boulding , 960 F.3d 774, 778 (6th Cir. 2020) (citing the First Step Act of 2018, 
Pub. L. No. 115-391, § 404, 132 Stat. 5194 (2018)).  Section 401 of the Act also made changes to 
the types of prior offenses that trigger en hanced penalties under section 841(b)(1)(A) and 
841(b)(1)(B).  United States v. Wiseman, 932 F.3d 411, 417 (6th Cir. 2019).   
  “[E]ligibility for resentencing under the Firs t Step Act turns on the statute of conviction 
alone,” regardless of the drug quantity that actu ally may have been involved in the offense.  
Boulding, 960 F.3d at 781.  And “[i]t ma kes no difference to [a de fendant’s] eligibility for 
resentencing under the First Step Act that his sent encing guidelines have not  changed or that he 
was sentenced as a career offender.”  United States v. Hicks, 427 F. Supp. 3d 930, 932 (E.D. Mich. 
2019) (citing United States v. Beamus , 943 F.3d 789, 791 (6th Cir. 2019)).  The First Step Act 
imposes only two limits on eligibility. “Defendants may not seek a reduction if their sentence was 
already modified to comport with the Fair Sent encing Act . . . .  And defendants may not seek 
resentencing under the First Step Act if they lost a pr ior motion after a ‘com plete review of the 
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motion on the merits.’”  Beamus, 943 F.3d at 791 (quoting Firs t Step Act of 2018, § 404(c), 132 
Stat. at 5222). 
 The government argues that resentencing th e defendants on Count 1 would have no effect 
whatsoever on their overall sentences because their concurrent life sentence on other counts would 
remain in place.  The government contends, therefore, that the Court should apply the concurrent-
sentence doctrine and deny Brown resentencing under the First Step Act.  The defendants counter 
that they are eligible under the First Step Act for sentence reductions on their section 848(e)(1)(A) 
intentional killing convictions because that stat ute requires the commissi on of an offense that 
violates section 841(b)(1)(A), the penalties for which were modi fied by the Fair Sentencing Act.  
Neither of these arguments carries the day.   
 The defendants’ argument was rejected outright already by the court of appeals.  In United 
States v. Snow, 967 F.3d 563, 564 (6th Cir. 2020) ( per curiam), it held that that because the Fair 
Sentencing Act never “m odified” section 848, “the First Step Act’s text and structure do not 
support extending resentencing reli ef to . . . § 848(e)(1)(A) conviction[s].”  Applying Snow, the 
court of appeals expressly rejected Gordon’s cl aim for relief from the sentence imposed for his 
section 848(e)(1)(A) conviction.  United States v. Gordon , No. 19-1739, Doc. 35-2, at 3-4 (6th 
Cir. Jan. 1, 2021) (am. order).   
 But those holdings do not preclude relief.  In Gordon’s appeal, the court made clear that 
his intentional killing conviction did not preclude the Court from considering whether he otherwise 
is eligible for a sentence reduction for his section 841 drug offense.  That the defendants received 
sentences based on guidelines determined by the application of the murder cross-reference 
therefore does not make them ineligible for sentencing relief.  Ibid.  Judge Cohn “erred in 
concluding otherwise” when he denied Gordon and Brown’s First Step Act motions.  And the court 
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of appeals also has held that once it is found that a defendant was sentenced for a covered offense, 
the First Step Act, permits (but does not require) plenary resentencing.  United States v. Maxwell, 
991 F.3d 685, 691-92 (6th Cir. 2021).   
 Nor does the so-called concurrent-sentence doc trine preclude the de fendants’ request for 
relief.  The Court has the discretion to reduce the total sentence when a covered offense is involved.  
United States v. Jackson , 515 F. Supp. 3d 708, 711-13 (E.D. Mich. 2021) (Lawson, J.) (citing 
United States v. Hudson , 967 F.3d 605 (7th Cir. 2020); United States v. Gravatt , 953 F.3d 258, 
262 (4th Cir. 2020)).  The court of appeals’s ac knowledgement that the Fi rst Step Act permits 
plenary resentencing also suggests that the Court may reduce an entire sentence that includes both 
covered and non-covered offenses.  Maxwell, 991 F.3d at 691-92.  The defendants each were 
convicted of “covered offenses” under the First Step Act because they were convicted of 
conspiring to possess with intent to distribute co caine base in violation of 21 U.S.C. §§ 846 and 
841(a)(1) and sentenced unde r section 841(b)(1)(A).  United States v. Boulding , 960 F.3d 774, 
778-81 (6th Cir. 2020).  They therefore are eligible for resentencing under the First Step Act.  Id. 
at 781-84.  As eligible defendants, they are “entitled to an accurate amended guideline calculation 
and renewed consideration of the 18 U.S.C. § 3353(a) factors.”  Id. at 776.   
 Brown’s procedural posture differs from that of his co-d efendants because Judge Cohn 
denied Brown’s First Step Act motion and Brow n filed a motion for reconsideration.  Brown 
properly sought relief under Local Rule 7.1, under which the Court may grant reconsideration of 
non-final orders if “[t]he court made a mistake, correcting the mistake changes the outcome of the 
prior decision, and the mistake was based on the record and law before the court at the time of its 
prior decision.”  E.D. Mich. LR 7.1(h)(2)(A).  As the court of appeals explained in defendant 
Gordon’s appeal on the same issue, Judge C ohn erred when he concluded that Brown was 
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ineligible for resentencing under section 404 of th e First Step Act because of his concurrent 
sentence for his intent ional killing conviction.  See United States v. Gordon , No. 19-1739, Doc. 
35-2, at 3-4 (6th Cir. Jan. 1, 2021) (am. order).   Brown is eligible for resentencing under section 
404 of the First Step Act because the Court imposed a sentence on Brown for a “covered offense” 
on Count 1.  Boulding, 960 F.3d at 778-81.   
 Of course, although a defendant may be eligib le for relief under the First Step Act, “[a] 
district court . . . is not ‘require[d] . . . to reduce any sentence’ pursuant to section 404(b).”  United 
States v. Foreman , 958 F.3d 506, 510 (6th Cir. 2020) (quoti ng First Step Act §§ 404(b), (c)). 
“Instead, the choice of whether to grant such relief to an otherwise eligible defendant is left to ‘the 
district court’s sound discretion.’”  Ibid. (citing Beamus, 943 F.3d at 792). 
B.  Factors 
 The United States Suprem e Court recently held in Concepcion v. United States, --- U.S. --
-, 142 S. Ct. 2389, 2404 (2022), “that the First Step Act allows district courts to consider 
intervening changes of law or fa ct in exercising their discreti on to reduce a sentence pursuant to 
the First Step Act.”  The defendants point to several changes in the law that may bear on 
resentencing.   
 For one, the defendants contend that they shou ld receive sentences of  no greater than 20 
years on each drug conspiracy count because no jury found that they possessed a specific amount 
of crack cocaine beyond a reasona ble doubt.  The defendants are co rrect that, under current law, 
they could be lawfully sentenced only under subparagraph (C) of section 841(b)(1), which applies 
when specific drug quantities are not alleged or a jury does not make a finding regarding specific 
drug amounts.  See United States v. Ware, 964 F.3d 482, 488 (6th Cir. 2020) (“Because a jury did 
not find his offenses involved sp ecific drug amounts, under today’s law he could be lawfully 
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sentenced only under 21 U.S.C. § 841(b)(1)(C) . . .”); United States v. Stewart, 306 F.3d 295, 310 
(6th Cir. 2002) (“[W]hen specific quantities are not alleged, a defendant should be sentenced under 
21 U.S.C. § 841(b)(1)(C), which establishes the default statut ory maximum sentences and does 
not require as an element of the offense a specific quantity of drugs.”).   
 At the time the defendants were convicted a nd sentenced, the jury was not required to make 
a specific finding as to th e quantities of drugs invol ved in an offense in order to sentence them 
under subparagraph (A).  See Ware 964 F.3d at 488.  That did not become the ru le until 2000, 
when the U.S. Supreme Court held that any fact  that increases the pe nalty for a crime beyond a 
prescribed statutory maximum must be submit ted to the jury and proved beyond a reasonable 
doubt.  Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).   
 Apprendi was decided after the defendants’ co nvictions and sentencings and does not 
change the fact that the defendants were se ntenced under 841(b)(1)(A).  Nor does it apply 
retroactively on collateral review.  Ware 964 F.3d at 488.  However, because the source of the 
Apprendi rule is “the Constitution itself . . . the underlying right necessarily pre-exists [the Supreme 
Court’s] articulation” of it, and the defendants’ Sixth Amendment rights necessarily were violated 
when their sentences were enhanced due to judge-found facts.  Ibid. (quoting Danforth v. 
Minnesota, 552 U.S. 264, 271 (2008)).  Therefore, the C ourt may still consider “the impact that 
Apprendi would have had” on the defendants’ statutory sentencing range as “a factor” in whether 
to exercise its discretion to grant the defendant s relief for which “Co ngress has made [them] 
eligible.”  Ibid.  This weighing is properly conducted as part of the section 3553(a) analysis.  United 
States v. Maxwell, 991 F.3d 685, 691 (6th Cir. 2021). 
 Even if that were not the case, Brown woul d face a different statutory minimum than his 
co-defendants on his drug conspi racy conviction.  Unlike his co -defendants, Brown was held 
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responsible for possessing only 50 to 150 grams of crack cocaine.  Had Brown been sentenced for 
his offense today, he would be subject to the “more lenient prison range for subparagraph (B),” for 
which a 5-year mandatory minimum applies.  Terry v. United States, --- U.S. ---, 141 S. Ct. 1858, 
1863 (2021) (citing 21 U.S.C. § 841(b)(1)(B)).  He also would not receive an enhanced penalty 
because his prior felony offense does not qualify as a “serious drug felony” under the First Step 
Act.  Section 401 of the statute imposes higher mandatory minimum penalties on individuals with 
prior state-law felony-drug convictions only if th eir offense of conviction carries “a maximum 
term of imprisonment of ten years or more.”  See Pub. L. No. 115-391, 132 Stat. 5194, § 401(a)(1) 
(defining “serious drug felony” to mean certain offenses de scribed in 18 U.S.C. § 924(e)(2)); 18 
U.S.C. § 924(e)(2) (defining the state-law controlled-substance offenses that qualify as a “serious 
drug offense”).  Brown’s prior state-law felony conviction was for possessing less than 25 grams 
of cocaine, an offense that carries a maximum of penalty of no more than four years’ imprisonment 
under Michigan law.  Brown PSR ¶ 7; Mich. Comp. Laws § 333.7403(2)(v).   
 The Sentencing Guideline range would not ch ange for any of the defendants, however.  
The first-degree murder cross-reference would still apply to all four defendants, resulting in a base 
offense level of 43 for each drug conspiracy charge.  See U.S.S.G. §§ 2A1.1(a), 2D1.1(d)(1).  The 
guideline sentencing range for each defendant therefore would still be life.  But that sentence would 
not be mandated, because the Sentencing Guidelines no on longer are mandatory.  United States 
v. Booker, 543 U.S. 220 (2005). 
 Moreover, when exercising disc retion to determine if a reduced sentence is appropriate for 
a First-Step-Act-eligible defendant, the Court may not focus exclusively on the Sentencing 
Guideline range.  Instead, it must consider whethe r “the length of [the defendants’] sentence[s] 
conforms with the sentencing goals set forth in 18 U.S.C. § 3553(a)” and determine whether “the 
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§ 3553(a) factors supported the sentence[s] imposed.” United States v. Sherrill, 972 F.3d 752, 768 
(6th Cir. 2020) (quoting United States v. Perez-Rodriguez, 960 F.3d 758, 753 (6th Cir. 2020)); see 
also Boulding , 960 F.3d at 784 (holding that the c ourts must undertake a “thorough renewed 
consideration of the § 3553(a) fa ctors” for eligible defendants ).  Although the Court is not 
“require[d]” to reduce the defendants’ sentences, Maxwell, 991 F.3d at 689, it must give “‘adequate 
consideration to [the § 3553(a) factors;’” it cannot  give undue weight to certain factors and too 
little weight to others, United States v. Johnson , 26 F.4th 726, 736 (6th Cir. 2022) (quoting 
Holguin-Hernandez v. United States , 140 S. Ct. 762, 766-67 (2020)).  The court of appeals has 
held that the Court’s “initial balancing of the § 3553(a) factors du ring [the defendant’s] 
sentencing” is presumed to “remain[] an accurate assessment as to whether those factors justify a 
sentence reduction.”  United States v. Sherwood, 986 F.3d 951, 954 (6th Cir. 2021).  In this case, 
however, Judge Cohn did not evaluate those factors because the life sentences were mandatory at 
the time.   
 When considering and balancing the section 3553(a) factors, “evidence of postsentencing 
rehabilitation may plainly be relevant to ‘the history and characteristics of the defendant.’”  Pepper 
v. United States, 562 U.S. 476, 491 (2011) (quoting 18 U.S.C. § 3553(a)(1)).  And as the Supreme 
Court has reminded us, dist rict courts must consider “inter vening changes of . . . fact” when 
“exercising their discretion to reduce a sentence pursuant to the First Step Act.”  Concepcion, 142 
S. Ct. at 2404.  Three of the de fendants have pointed to their records of self- improvement and 
rehabilitation during their more than two decades in prison.  The evidence stands as an affirmation 
of the idea that the passage of time can change a person who is receptive to counselling, reflection, 
and the insight that accompanies it.   
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1. Edward Dale 
 Dale’s rehabilitation while in prison indeed ha s been significant.  His disciplinary record 
is nearly spotless, with no reporte d incidents over the last 10 y ears.  Case Manager Letter, ECF 
No. 2472-2, PageID.19658.  He has exhibited a str ong work ethic, working at the prison’s 
education library and, currently, as a Health Serv ices Orderly.  Mot. for Compassionate Release, 
ECF No. 2472, PageID.19633.  He has obtained his GED and encourages other inmates to do the 
same, and he has completed extensive vocational and social programming, including a number of 
courses focused on preparing for reentry.  Ibid.; Program Review, ECF No. 2472-5, PageID.19682.  
Dale has submitted more than 20 letters from BOP staff attesting to his rehabilitation and noting 
his mentorship, professionalism, positive outlook, peaceful nature, and preparedness to work in 
and contribute to the civilian world.  Letters from BOP Staff, Ex. B, ECF No. 2472-2; Ex. A, ECF 
No. 2485-2.   
2.  John Gordon 
 Gordon now expresses remorse, takes respon sibility, and explains  that his violent 
upbringing and youth resulted in his crimes.  His prison record  might be characterized as 
“unremarkable,” but there is no ev idence that he has been anything but a model prisoner.  As of 
May 2019, he had taken more than 40 educatio nal courses, including drug rehabilitation 
programming and career training, co mputer, and financial skill cla sses.   Transcript, ECF No. 
2371-3, PageID.17548.  He earned hi s GED while in prison, ibid., and has been awarded at least 
13 certificates of achievement for his completion of various re-entry programs, Certificates, ECF 
No. 2371-5, PageID.17557.  Gordon also has worked continuously in a number of prison jobs, and 
while his prison disciplinary histor y is not in the reco rd, the government does not allege that he 
has incurred any major infractions.  Work De tail, ECF No. 2371-4, PageID.17552.  His children, 
parents, partner, and siblings attest to his personal growth desp ite a difficult upbringing and aver 
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that they will help Gordon make good on his plans successfully to reenter the community.  Letters, 
ECF No. 2359, PageID.17360-63.   
3.  Gene Polk 
 Polk has not discussed or analyzed the secti on 3553(a) factors in any of his briefs.  His 
supplemental brief motion merely acknowledges that the Court should consider the factors.  It does 
not discuss Polk’s rehabilitation or  any other relevant facts.  Polk ’s second supplemental brief in 
support of his motion likewise does not raise a ny arguments regarding Polk’s post-sentencing 
rehabilitation or prison record.  Before the Cour t can consider whether a shorter sentence is an 
appropriate remedy for Polk, he wi ll have to furnish relevant in formation to the Court or the 
Probation Department.   
4.  Gregory Brown 
 Brown likewise expresses remorse, takes re sponsibility, and explains that his violent 
upbringing and youth resulted in hi s crimes.  He has provided sta tistics demonstrating that life 
sentences are not always appropriate for murder, which are a “star ting point for district judges in 
their efforts to ‘avoid unwarrant ed sentence disparities among de fendants with similar criminal 
records who have been found gu ilty of similar conduct.’”  United States v. Stock , 685 F.3d 621, 
630 n.6 (6th Cir. 2012) (quoting 18 U. S.C. § 3553(a)(6)).  And he has furnished evidence of his 
substantial rehabilitation, including letters from BOP staff attesting to his rehabilitation; extolling 
his mentorship, professionalism, positive out look, and peaceful nature; and certifying his 
preparedness to work in and contribute to the civilian world.  Brown credits this growth in part to 
the wisdom of age, noting that  he was a young man when he co mmitted the crimes for which he 
was convicted, and developed his prior criminal record during a very difficult childhood.   
 
 
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C.  Remedy 
 All of these facts could make  a difference in resentencing.  And the Court must consider 
them.  Concepcion, 142 S. Ct. at 2404 (holding that “when deciding a First Step Act motion, district 
courts [must] . . . explain thei r decisions and demons trate that they cons idered the parties’ 
arguments”) (citations omitted).  But due to the length of time that has passed since the defendants 
last were evaluated, the Court needs updated information to determine the extent of the relief they 
should be afforded.  The Probation Department will be able to furnish an updated report. 
IV.  Defendant Brown’s Compassionate Release Motion 
 Defendant Brown also has filed a motion for compassionate release, presenting multiple 
arguments for why extraordinary and compelli ng reasons now warrant a sentence reduction.  
However, none satisfy the requirements of 18 U.S.C. § 3582(c)(1)(A).   
 Brown requested a reduction in sentence from the warden at FCI Talladega, which was 
denied on July 21, 2020.  Brown asked for reconsideration, which the warden also denied.  Brown 
then filed a pro se motion for compassionate re lease.  With the assistance of counsel and upon 
leave of the Court, Brown also filed a supplemental brief in support of his compassionate release 
motion.  The government filed a response to the supplemental brief.  Some of Brown’s arguments 
for compassionate release overlap with arguments he presented in his mo tion for First Step Act 
relief and his motion to vacate his sentence under 28 U.S.C. § 2255.   
 The court of appeals has held that “in the absence of an applicab le policy statement for 
inmate-filed compassionate-release motions, district courts have discretion to define 
‘extraordinary and compelling’ on their own initiative.”  United States v. Elias, 984 F.3d 516, 519-
29 (6th Cir. 2021).  But the court has provided guidance on how those terms apply in specific 
instances.   
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 Brown offers five arguments.  First, he says  that the Court should consider his categorical 
eligibility for a sentence reduction under the Firs t Step Act as an extraordinary and compelling 
reason for relief.  But he points to no authority even remotely s uggesting that the First Step Act 
and the compassionate relief statute relate to each other or somehow me rge to furnish a unique 
basis for reducing a sentence.  Each statute outli nes separate and distinct  grounds for relief, and 
the requirements of each must be satisfied independently.  Neither acts as a safety valve for the 
others.   
 Second, Brown reprises his section 2255 motion argument that his youth at the time of the 
convicted conduct, together w ith the impact of childhood trauma , rendered him unable to make 
informed decisions and warrants a re duced sentence.  He argues that Miller v. Alabama  should 
apply to him because he joined the conspiracy at issue at age 13.  The Court addressed the merits 
of that argument earlier in this opinion.  More over, the court of appeals foreclosed Brown’s 
argument in United States v. Hunter, which held that facts “that existed at sentencing,” such as the 
defendant’s youth, cannot fit the definition of “extraordinary and compelling.”  12 F.4th 555, 570 
(6th Cir. 2021).  Brown insists that Hunter was wrongly decided.  But whether it was or wasn’t, 
district courts do not have the luxury of disregar ding precedent or settled law to reach a desired 
result.   
 Third, Brown asserts that, under United States v. Booker, 543 U.S. 220 (2005), the Court 
would no longer be required to issue a life sentence.  Once again, Sixth Circuit precedent dooms 
that argument.  Hunter, 12 F.4th at 565-68 (holdi ng that “non-retroactive changes in the law,” 
including changes based on the decision in Booker, “cannot be relied upon as ‘extraordinary and 
compelling’ explanations for a sentence reduction”); United States v. McKinnie, 24 F.4th 583, 587 
(6th Cir. 2022) (reaffirming Hunter); United States v. Carter , 500 F.3d 486, 491 (6th Cir. 2007) 
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(holding that Booker does not provide grounds for relief on a compassionate release motion 
brought under 18 U.S.C. § 3582(c)(2)); Humphress v. United States , 398 F.3d 855, 860 (2005) 
(holding, in the context of a 28 U.S.C. § 2255 motion, that “ Booker’s rule does not apply 
retroactively in collateral proceedings”).   
 Fourth, Brown argues that the Court should consider the harsh conditions of pandemic 
confinement and his significant re habilitation alongside other factors that weigh in favor of 
compassionate release.  But the Sixth Circuit has narrowed significantly the circumstances in 
which the pandemic can provide ex traordinary and compelling reasons  for a sentence reduction.  
It has allowed that the combination of  the pandemic, rehabilitation efforts, and a nonretroactive 
change in sentencing law may constitute extraordinary and compelling circumstances warranting 
a prisoner’s compassionate release.  United States v. McCall, 20 F.4th 1108, 1109 (6th Cir. 2021).  
However, it also has held that, in light of the availability of COVID-19 vaccinations, the pandemic 
itself is not extraordinary and compelling, nor is the combination of a defendant’s rehabilitation 
and the risk of complications from COVID-19.  McKinnie, 24 F.4th at 588; see also United States 
v. Lemons, 15 F.4th 747, 751 (6th Cir. 2021); 28 U.S.C. § 994(t).   
 Finally, Brown argues that the section 3553 (a) factors favor a se ntence reduction.  
However, without establishing an extraordinary and compelling reason for relief under section 
3582(c)(1)(A), the 3553(a) factors have no imp act on a motion for compassionate relief.  See 
United States v. Navarro, 986 F.3d 668, 670 (6th Cir. 2021).   
 Brown is not entitled to reli ef under 18 U.S.C. § 3582(c)(1)(A). 
V.  Miscellaneous Procedural Motions 
 Defendant Gordon moved to consolidate his section 2255 motion with those filed by 
defendants Dale and Polk.  He argues that the legal and factual issues in each case are similar, and 
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that consolidation will speed resolution of the issues while avoiding du plication of discovery, 
research, and pretrial motions.  Th at relief has in effect been gr anted, as the Court has addressed 
all the section 2255 motions togeth er.  But there is no reason to enter an order formally 
consolidating them, consolidation is discretionary with the Court, and that motion will be denied.  
Cantrell v. GAF Corp., 999 F.2d 1007, 1010-11 (6th Cir. 1993) (quoting Fed. R. Civ. P. 42(a)).   
 Gordon also filed a motion to expedite consideration of his section 2255 and first Step Act 
motions.  Because those motions are addressed in  this opinion, his motion to expedite will be 
denied as moot.   
 Defendant Brown filed a mo tion to hold in abeyance his motion for reconsideration.  
However, because all the parties’ pending motions have been addressed in this opinion, there is no 
reason to hold off on a decision on that motion.   
 Brown  also filed motions to appoint an expert to give testimony about youthful offenders 
in support of his section 2255 motio n, and motions to take judicial  notice of certain appellate 
decisions.  There is no need to appoint an expert because the section 2255 motion will be denied 
as untimely.  And the Court is aware of precedential decisions by the appellate courts and need not 
take judicial notice of domestic law.  See Fed. R. Evid. 201(a) (stating that under that rule, a court 
may take “judicial notice of an adjudicative fact only”).   
VI. 
 Defendants Dale, Gordon, Polk, and Brown ar e not entitled to re lief under 28 U.S.C. § 
2255.  They are eligible, however, for a sentence reduction under the First Step Act.  The Court 
will need current information so that it can a pply the factors found in 18 U.S.C. § 3553(a) and 
make an informed decision on resentencing.  Defe ndant Brown is not entitled to relief under 18 
U.S.C. § 3582(c)(1)(A).  And the parties’ various procedural motions lack merit.   
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 Accordingly, it is ORDERED that the defendants’ motions to vacate their sentences under 
28 U.S.C. § 2255 (ECF Nos. 2266 [Dale]; 2264, 2337 [Gordon]; 2275 [Polk] 2258, 2272 [Brown]) 
are DENIED.   
 It is further ORDERED that defendant Brown’s motion for compassionate release (ECF 
No. 2471) is DENIED.   
 It is further ORDERED that the motions by defendants Dale, Gordon, and Polk to reduce 
their sentences under the First Step Act (ECF Nos. 2365 [Dale]; 2359, 2500 [Gordon]; 2366 
[Polk]), and defendant Brown’s motion fo r reconsideration (ECF No. 2391) are GRANTED IN 
PART.  
 It is further ORDERED that defendant Brown’s motions to appoint an expert (ECF No. 
2311), to hold his motion for reconsideration in abeyance (E CF No. 2392), and to take judicial 
notice (ECF Nos. 2369, 2379); Gordon’s motions to expedite the proceedings (ECF No. 2361) and 
to consolidate the defendants’ 2255 motions (ECF  No. 2296); and Polk’s motion for joinder in 
supplemental briefs filed by Dale (ECF No. 2389) are DENIED.   
 It is further ORDERED that United States Probation Department provide updated, current 
information on the defendants’ status with updated presentence reports by September 26, 2022.   
  s/David M. Lawson  
  DAVID M. LAWSON 
  United States District Judge 
 
Dated:   July 20, 2022 
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