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govinfo:USCOURTS-mied-2_92-cr-81127-45

U.S. District Court for the Eastern District of Michigan · 2022-12-22

· GavelSight synced 2026-09-06 03:41:00

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 
SOUTHERN DIVISION 
 
UNITED STATES OF AMERICA, 
 
   Plaintiff,    Case Number 92-81127 
v.        Honorable David M. Lawson 
 
JOHN GORDON, 
 
   Defendants. 
________________________________________/ 
 
OPINION AND ORDER DENYING GOVERNMENT’S 
MOTION FOR RECONSIDERATION 
 In July of this year, the Court granted defendant John Gordon’s motion for a sentence 
reduction under the First Step Act of 2018 and sc heduled the sentence hearing for December 1, 
2022.  On that date, the Court resentenced Gordon, who had been serving a life sentence, to terms-
of-years sentences on the three counts of conviction in the indictment.  Because the defendant has 
served more prison time than the new sentence imposes, the government filed a motion asking the 
Court to reconsider only that  aspect of the sentence and im pose a sentence of time served.  
Generally, once a sentence is imposed — or in this case, reimposed — the Court may not alter it, 
except for limited reasons, including those fou nd in Federal Rule of Criminal Procedure 35.  
Although the government’s position has merit, it did not invoke or argue a basis for resentencing 
under Rule 35, and the Court has found no other authority to permit it to do what the government 
asks.  The motion, therefore, will be denied.   
I. 
A. 
 In the mid-1990s, defendant Gordon was indict ed along with 44 others for their roles in a 
violent drug trafficking organization, the “Best Friends,” wh ich began in the mid-1980s and was 
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responsible for multiple homicides.  Gordon proceeded to trial and was convicted of conspiracy to 
possess with intent to distribute and to distribute an unspecified amount of cocaine base (Count 1), 
intentional killing in furtherance of a drug crime (Count 10), and carrying a firearm in relation to 
a drug trafficking crime (Count 11 ).  His sentencing guideline ra nge was life, and Judge Avern 
Cohn sentenced Gordon to life in prison on the drug and homicid e counts, as required by the 
mandatory guideline application regime in place before the Supreme Court made the sentencing 
guidelines advisory in United States v. Booker, 543 U.S. 220, 245 (2005).   
 Gordon filed multiple post-conviction motions for relief from his life sentence.  One of 
them, which invoked the First Step Act of 2018, was denied by Judge Cohn after he concluded 
that because Gordon’s sentencing guideline rang e was calculated under the intentional killing 
section, U.S.S.G. § 2A1.1, he was ineligible for re lief under the First Step Act.  The court of 
appeals reversed, holding that Gordon was categorically eligible  for a sentence reduction on his 
drug conspiracy conviction on Count 1.  
 After remand, the Court revi ewed arguments from Gordon and three other co-defendants.  
On July 20, 2022, the Court granted Gordon’s motion for a sentence reduction under the First Step 
Act of 2018 and scheduled the case for a plenary resentencing hearing.  See United States v. Dale, 
No. 92-81127, 2022 WL 2841474, at *11 (E.D. Mich. Ju ly 20, 2022).  The government took no 
issue with that ruling at the time.   
 On December 1, 2022, the Court held a resentencing hearing and resentenced Gordon to 
240 months in custody on Counts 1 a nd 10 of the indictment, to be se rved concurrently.  It also 
sentenced Gordon to a consecutive 60-month term on Count 11.  Resentencing Tr., ECF No. 2572, 
PageID.20873.  (The Court incorrectly referred on the record to Count 10 as Count 8 and Count 
11 as Count 9 during the hearing; a similar error appeared in type, and was corrected by hand, in 
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the original judgment.).  Duri ng the resentencing hearing, the government moved the Court to 
“stay its order granting Mr. Gordon’s motion for a period of 30 days.”  Id. at PageID.20875.  The 
Court temporarily stayed entry of the judgment and directed th e government to file a written 
motion by December 5, 2022 if it wanted to pursue a stay.  No such motion was filed; instead, the 
government filed a motion asking the Court to reconsider Gordon’s sentence and sentence him to 
time served.  Gordon filed a response opposing the motion.   
B. 
 The government argues that it is improper to sentence Gordon to less than time served, 
because any time he served in excess of his ne w sentence could be credited against any future 
sentence if his supervised releas e is revoked.  It also contends that permitting Gordon to “bank 
time” is inconsistent with the sentencing factor s under 18 U.S.C. § 3553(a) .  Gordon argues that 
the government’s motion is improper because it cannot file a motion to reconsider a final sentence.   
 The court of appeals has stated clearly that “[ i]n the sentencing context, there is simply no 
such thing as a ‘motion to reconsider’ an otherwise final sentence.”  United States v. Dotz , 455 
F.3d 644, 648 (6th Cir. 2006).  However, Rule 35(a) of the Federal Rules of Criminal Procedure 
provides that, “[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from 
arithmetical, technical, or other clear error.”  United States v. Arroyo, 434 F.3d 835, 838 (6th Cir. 
2006) (quoting Fed. R. Crim. P. 35(a)).   
 The government did not cite Rule  35.  Instead, it styled its motion as a motion to reconsider 
Gordon’s sentence.  Although the motion does not cite Rule 35(a), in substance if not in form it is 
the functional equivalent of a motion brought under that rule.  See Duggins v. United States, 240 
F.2d 479, 484 (6th Cir. 1957) (authorizing relief under Rule 35 even though it was “not specifically 
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relied upon” by petitioner); United States v. Morillo, 8 F.3d 864, 868 (1st Cir. 1993) (construing a 
motion “to correct sentence” as being brought under Rule 35).   
 But that aside, “[t]he authority conferred by Rule 35(a) to a district court is extremely 
limited.”  Arroyo, 434 F.3d 838 (citing United States v. Galvan-Perez, 291 F.3d 401, 406 (6th Cir. 
2002)).  The rule “is not intended to afford the court the opportunity to change its mind about the 
appropriateness of the sentence,” nor should it be “used to reopen issues previously resolved at the 
sentencing hearing through the exercise of the court’s discretion with regard to the application of 
the sentencing guidelines.”  Galvan-Perez, 291 F.3d at 406 (quoting Fed. R. Crim. P. 35 advisory 
committee’s note to 1991 amendment).  Accordingly, if an error “‘did not constitute an obvious 
error or mistake that would have resulted in a remand,’” it is “outside of Rule 35(a)’s narrow 
purview.”  Arroyo, 434 F.3d at 838 (quoting Galvan-Perez, 291 F.3d at 407); see also United 
States v. Abreu-Cabrera, 64 F.3d 67, 72 (2d Cir. 1995)).   
 For purposes of Rule 35, “‘sentencing’ means the oral announcement of the sentence.”  
Arroyo, 434 F.3d at 838 n.2 (quoting Fed. R. Crim. P. 35(c)). 
 The government seeks to avoid Doltz’s bar against reconsideration of a sentence by 
distinguishing an original se ntence from a resenten ce under the First Step Act.  It cites United 
States v. Hible , 13 F.4th 647, 649 (7th Cir. 2021), for the proposition that part ies can move for 
reconsideration of First Step Act decisions.  But Hible does not support the government’s position.  
There, the court was not presented with a resent encing; instead, the defendants had filed motions 
in the trial court for re lief under the First Step Act, which we re denied.  They filed motions for 
reconsideration of the orders denying those motions .  There was no resentencing involved at all.  
Id. at 650 (observing that “our two pr isoners are not ap pealing from the imposition of their 
sentences”).  The court held, therefore, that Ru le 35 does not prohibit a defendant from filing a 
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motion to reconsider an order granting or  denying relief under the First Step Act.  Ibid. 
(determining that such motions are “external to Rule 35”).  A ddressing the issue presented for 
review, the court held that a reconsideration motion under those circumstances tolls the deadline 
for filing an appeal until that motion is decided.  Id. at 650-51.   
 The analog to Hible in this case is the Court’s order granting relief under the First Step Act, 
which was entered on July 22, 2022.  ECF No. 2541.  The government certainly could have moved 
for reconsideration of that order within the time allowed, but it elected not to do so.  See E.D. 
Mich. LR 7.1(h)(2) (stating that “[ m]otions for reconsideration of non-final orders . . . must be 
filed within 14 days after entry of the order”).  The government did ask for reconsideration of the 
July 2022 order, but it did not do so until November 23, 2022, well out of time.   
 The proceeding on December 1, 2022 was not limited to consideration of the defendant’s 
eligibility for relief under the First Step Act; that already had been determined.  It was a plenary 
resentencing.  The sentence was within the Court’s discretion for the reasons the Court explained 
in its order granting Gordon’s Fi rst Step Act motion in part.  See United States v. Dale , No. 92-
81127, 2022 WL 2841474, at *6 (E.D. Mich. July 20, 2022).  Gordon’s drug conspiracy conviction 
categorically is a covered offense.  United States v. Boulding, 960 F.3d 774, 778-81 (6th Cir. 2020).  
The court of appeals has held that, once it is fo und that a defendant was sentenced for a covered 
offense, the First Step Ac t permits (but does not requ ire) plenary resentencing.  United States v. 
Maxwell, 991 F.3d 685, 691-92 (6th Cir. 2021); see also United States v. Hudson , 967 F.3d 605 
(7th Cir. 2020); United States v. Gravatt, 953 F.3d 258 , 262 (4th Cir. 2020).  At that point, “the 
First Step Act allows district courts to consider  intervening changes of law or fact in exercising 
their discretion to reduce a sentence pursuant to the First Step Act.”  Concepcion v. United States, 
--- U.S. ---, 142 S. Ct. 2389, 2404 (2022).  After ba lancing the 18 U.S.C. § 3553(a) factors and 
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considering the length of Gordon’s sentence in light of the sentencing goals set forth in that statute, 
the Court exercised its discretion in deciding to vary from the now-advisory sentencing guideline 
range.  See Arroyo, 434 F.3d at 839 (“The decisions of ‘whether to depart and how much to depart 
are entirely committed to the district judge’s  discretion.’” (quoting United States v. Jones , 417 
F.3d 547, 550 (6th Cir. 2005)); United States v. Booker, 543 U.S. 220, 245 (2005)).  The resulting 
decision therefore amounted to a “sente nce” for the purpose of Rule 35(a).  Arroyo, 434 F.3d at 
839.   
 Rule 35(a) does not permit the government to attempt to  revise a valid sentence.  See 
Arroyo, 434 F.3d at 839 (“The orig inal sentence was within th e court’s discretion, and by 
reviewing the sentence pursuant to Rule 35, the c ourt improperly ‘reopen[ ed] issues previously 
resolved at the sentencing hearing through the exercise of the court’s discretion with regard to the 
application of the sentencing guid elines.’” (quoting Fed. R. Crim.  P. 35 advisory committee’s 
note)).  The government’s motion therefore is outside of the narrow purview of Rule 35(a).  Ibid.   
 That is not to say that the government’s ar gument here is meritless.   The only potential 
error the government raised is the possibility that, as a result of his resentencing, Gordon could 
“bank time” against a hypothetica l future revocation of his su pervised release term.  The 
government cites United States v. Jackson , 952 F.3d 492, 498-500 (4th Cir. 2020) for the 
proposition that the Court could have considered that possibility  in weighing the 18 U.S.C. § 
3553(a) factors.  And that is a valid point that  the Court likely would have considered, had the 
government timely presented that argument.  It did not do so, however, and the sentencing decision 
has been made.   
 The prospect of banked time does not undermin e the validity of the sentence, though.  The 
Sixth Circuit has found that district courts have the authority to reduce a completed custody term 
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even if doing so creates a “time bank.”  United States v. Nichols, 897 F.3d 729, 734 (6th Cir. 2018) 
(considering an illegally excessive sentence).  That  the Court did not consider the possibility of 
time banking in this case hardly amounts to a clear error, particularly in light of the government’s 
failure even to raise the issue before resentencing or at the hearing. 
 The government’s motion to reconsider Gordon ’s sentence is improper and will be denied. 
III. 
 The government raised some additional is sues in its November 23, 2022 request for 
reconsideration of the Court’s July 2022 ruling, which deserve some comment.   
A. 
 Gordon’s case was back before this Court af ter remand following his successful appeal.  
Gordon had argued initially before Judge Cohn that his cocaine base conviction (Count 1) and his 
drug-related murder conviction (Count 10) were both “covered offenses” under the First Step Act 
because 18 U.S.C. § 848(e)(1)(A) requires the commi ssion of an offense that violates section 
841(b)(1)(A), which the Act modifi ed.  Judge Cohn ruled that Gor don was not eligible for relief 
on either count.  Gordon repeated his argument in the court of appeals, and the government argued 
in response that even if Count 1 involved a covered offense, Gordon could not obtain relief because 
he still would have to serve his life sentence on Count 10 (an argument sometimes referred to as 
the “concurrent sentencing doctrine”).  The court of appeals held that although Count 10 was not 
an offense covered by the First St ep Act, Count 1 was a covered of fense.  The court rejected the 
government’s concurrent-sentencing-doctrine-argument and remanded for further proceedings.   
 In its November 2022 filing, the government argue d for the first time that the Court lacked 
any discretion to reduce Gordon’s total sentence under the mandate rule.  The Court rejected that 
argument at the December 1, 2022 resentencing hearing.   
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 The mandate rule “requires lowe r courts to adhere to the commands of a superior court.” 
United States v. Mendez, 498 F.3d 423, 426 (6th Cir. 2007) (quoting United States v. Moored, 38 
F.3d 1419, 1421 (6th Cir. 1994)).  The rule generally precludes a lower court from “reconsidering 
an issue expressly or impliedly decided by a superior court.”  Ibid.  To determine whether a district 
court improperly reconsidered an issue in violation of the mandate rule, the court of appeals usually 
considers (1) whether it expressl y or impliedly decide d the issue on appeal, and (2) whether its 
mandate to the district court “w as so narrow in scope as to pr eclude the district court from 
considering” that issue.  United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994).  The mandate 
rule is closely related to the law-of-the case doctrine, under which “findings made at one point in 
the litigation become the law of the case for subsequent stages of that same litigation.”  Ibid. 
 The mandate rule and law of the case doctrin e, however, have “little  applicability in the 
sentencing arena.”  United States v. Hebeka, 89 F.3d 279, 284 (6th Cir. 1996).  The Sixth Circuit 
repeatedly has cautioned that “there appears to be no prohibition in the guidelines, or in the case 
law interpreting the guidelines, keeping a distri ct judge from revisitin g the entire sentencing 
procedure unless restricted by the remand order.”  United States v. Duso , 42 F.3d 365, 368 (6th 
Cir. 1994); see also United States v. Baro, 95 F.3d 1153 (6th Cir. 1996); Moored, 38 F.3d at 1422.  
Accordingly, “[o]nce a sentence has been vacated or a finding related to sent encing has been 
reversed and the case has been remanded for resentencing, the district court can hear any relevant 
evidence on that issue that it coul d have heard at th e first hearing.”  Moored, 38 F.3d at 1422 
(quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992)).   The exception is where 
the court of appeals conveys “clearly” and unmistakably “the intent to limit the scope of the district 
court’s review.”  United States v. O’Dell, 320 F.3d 674, 679 (6th Cir. 2003) (quoting United States 
v. Campbell, 168 F.3d 263, 267-68 (6th Cir. 1999).  “With sentencing issues, in light of the general 
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principle of de novo consideration at resentencing, [the court of appeals] should leave no doubt in 
the district judge’s or parties’ minds as to th e scope of the remand.”  Ibid.  That is “achieved by 
outlining the procedure the district court is to follow, articulating the chain of intended events with 
particularity, and leaving no doubt as to the scope of the remand.”  United States v. Pawlak, 711 
F. App’x 314, 318 (6th Cir. 2017) (quoting United States v. McFalls, 675 F.3d 599, 604 (6th Cir. 
2012)).   
 The logic of these holdings extends to the instant case.  Here, Go rdon appealed Judge 
Cohn’s order holding that because Gordon’s sentencing guideline range was calculated under the 
intentional killing section, U.S.S.G. § 2A1.1, he was ineligible for relief under the Fair Sentencing 
Act.  Gordon argued both that he was categorical ly eligible for a senten ce reduction on his drug 
conspiracy conviction (Count 1) and that his intentional killi ng conviction (Count  10) also was 
covered by the First Step Act, because 12 U.S.C.  § 848(e)(1)(A) requires the commission of an 
offense that violates section 841(b)(1)(A), which the Act modified.  The court of appeals accepted 
the former argument but rejected the latter, de termining that the conviction on Count 1 was a 
covered offense, but Count 10 was not.  Accordingly, it vacated the district court’s order “only as 
to Count 1,” and remanded the case for furt her proceedings.  ECF No. 2457, PageID.19480-81.  
However, the court of appeals also explicitly rejected the concurrent-sentencing-doctrine 
argument, under which “an appell ate court may decline to hear a substantive challenge to a 
conviction when the sentence on th e challenged conviction is being served concurrently with an 
equal or longer sentence on a valid conviction.”  Dale v. Haeberlin , 878 F.2d 930, 935 n.3 (6th 
Cir. 1989).  And it noted that Gordon was challenging his intentional killing conviction by separate 
motion.   
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 The Sixth Circuit’s mandate  plainly prohibits the Cour t from reconsidering Gordon’s 
argument that his intenti onal killing conviction is a covered offense under the First Step Act.  
However, the mandate includes no limitation relevant to Gordon’s resentencing.  See O’Dell, 320 
F.3d at 680 (collecting examples of limited mandates).  That, of course, is due to the fact that the 
court of appeals was not ordering a resenten cing, only remanding Gordon’s case for further 
proceedings.  Nevertheless, the mandate, view ed in the context of the opinion, does not 
unmistakably restrict the Court from conducti ng a plenary resentencing based on Gordon’s 
categorical eligibility for a sentence reduction under the First Step Act.  See O’Dell, 320 F.3d at 
681 (6th Cir. 2003) (holding that “context matters” to determining whether a mandate is limited, 
including “the analysis offered in the opinion”).   
B. 
 The government also argued that the Cour t cannot resentence Gordon because the First 
Step Act’s changes to the mandatory minimum sentence applicable to 18 U.S.C. § 924(c) 
convictions do not apply retroac tively.  Nothing in the Court’s opinion or the new sentence, 
however, addressed any subsequent changes to section 924(c).  The Court applied that statute as it 
existed at the original sentencing hearing.   
C. 
 The government also sought to  revisit the Court’s ruling in the July 20, 2022 opinion and 
order holding that it would conduct a plenary rese ntencing.  Citing only out-of-circuit authority, 
the government argued that the Court cannot conduct a plenary resentencing where a defendant is 
convicted of intentional killing.  But, for the reasons noted earlier,  this request to  reconsider the 
earlier ruling comes too late.   
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 Moreover, the Sixth Circuit cases the government cites do not stand for the proposition for 
which they are cited.  For instance, the government argued that United States v. Maxwell permitted 
plenary resentencing “only after eligibility is established on each count.”  Gov’t Memo, ECF No. 
2568, PageID.20666.  But no language in that case evokes that limitation.  Instead, the court held 
that, although “the First Step Act does not require plenary resentencing hearings,” trial judges have 
the discretion to hold such a hearing and to “consider[] intervening legal and factual developments 
in handling First Step Act requests.”  Maxwell, 991 F.3d at 691.  And that holding later was echoed 
by the Supreme Court.  Concepcion, 142 S. Ct. at 2404.   
 It is true that, in both Concepcion and Maxwell, the defendant had only a single remaining 
conviction for an FSA-covered offense.  But neither  decision was predicated on that fact.  And 
nothing in either decision prevents the Cour t from conducting a plenary resentencing where a 
defendant was convicted of both covered and nonc overed offenses.  To the contrary, the Sixth 
Circuit explicitly held that district courts ar e permitted to consider “intervening developments, 
such as changes to the career-offender guidelines, as grounds for reducing a sentence,” and has the 
discretion to “recalculate the guidelines to account for intervening legal developments.”  Maxwell, 
991 F.3d at 692.   
 Both the Fourth and Seventh Circuits have permitted plenary sentencing where defendants 
were convicted of both covered and noncovered offenses.  The government mischaracterizes the 
facts of United States v. Gravatt, 953 F.3d 258, 264 (4th Cir. 2020), in its November 2022 filing, 
representing that the defendant was convicted of “one covered of fense.”  That is not exactly 
correct: the defendant was charge d with one conspiracy  count for distribu ting both powder and 
crack cocaine.  The Fourth Circuit found that, although the former offense “plainly [is] not a 
covered offense” under the First Step Act, the defendant nevertheless could be eligible for 
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resentencing.  It reasoned that the Fair Sent encing Act contains its own list of imitations on 
eligibility, and carving out non-covered offenses fo r an otherwise-eligible defendant was not one 
of them.  Gravatt, 953 F.3d at 264.   
 The Seventh Circuit cited Gravatt when it held that the First Step Act “does not bar a court 
from reducing [the sentence for] a non-covered offense.”  United States v. Hudson, 967 F.3d 605, 
610 (7th Cir. 2020).  The defendant in Hudson was convicted of both a covered crack cocaine 
offense and a firearms offense.  The Seventh Circ uit remanded his case a nd directed the district 
court to determine “whether his aggregate term of imprisonment — including the sentence on the 
firearm offense — should be reduced.”  Id. at 611.  Its logic echoed the Fourth Circuit’s reasoning 
in Gravatt.  Ibid. (“Excluding non-covered offenses from the ambit of First Step Act consideration 
would, in effect, impose an extr a-textual limitation on the Act’s applicability.”).  Holding 
otherwise, the court said, would ignore the realities of sentencing practices: “Sentences for covered 
offenses are not imposed in a vacuum, hermetically sealed o ff from sentences imposed for non-
covered offenses.  Nor could they be.  Multiple terms of imprisonment are treated under federal 
law as a single, aggregate term of imprisonme nt, 18 U.S.C. § 3584(c), and we’ve recognized ‘a 
criminal sentence is a package composed of several parts.’”  Ibid. (quoting United States v. Litos, 
847 F.3d 906, 909 (7th Cir. 2017)).   
 Nothing in the controlling caselaw categoric ally prohibited the C ourt from conducting a 
plenary resentencing on all counts of convction in this case. 
IV. 
 Had the government raised the issue of “b anked time” at Gordon’ s resentencing hearing, 
the Court likely would have considered it.  Howe ver, the Court may not adjust the new sentence 
to a sentence of time served at this stage of the case.  The government’s other arguments, untimely 
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raised, do not warrant reconsideration of the Court’s July 22, 2022 opin ion and order granting 
relief under the First Step Act.   
 Accordingly, it is ORDERED that the government’s motion for reconsideration of the 
newly imposed sentence (ECF No. 2573) is DENIED. 
  s/David M. Lawson  
  DAVID M. LAWSON 
  United States District Judge 
 
Dated:   December 22, 2022 
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