USCA4 Appeal: 22-6748 Doc: 48 Filed: 03/20/2024 Pg: 1 of 17

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6748

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NATHANIEL A. RICHARDSON, JR., a/k/a Nathaniel Skeeter, a/k/a Skeet,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, Senior District Judge. (2:96-cr-00153-RAJ-1)

Argued: December 6, 2023 Decided: March 20, 2024

Before GREGORY and HARRIS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Vacated and remanded with instructions by published opinion. Senior Judge Floyd wrote the opinion in which Judge Gregory and Judge Harris joined.

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Joseph Attias, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, United States Attorney, Keith Loren Kimball, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Richard D. Cooke, Assistant United States Attorney, Richmond, Virginia, Daniel J. Honold, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. USCA4 Appeal: 22-6748 Doc: 48 Filed: 03/20/2024 Pg: 2 of 17

FLOYD, Senior Circuit Judge:

It is “longstanding tradition” in American law that a sentencing judge sentences the

“whole person” in front of her “as an individual.” Concepcion v. United States,

, (2022) (quoting Koon v. United States,

(1996)). In line with

this history, federal judges exercise “wide discretion . . . to craft appropriate sentences.”

(quoting Williams v. New York,

(1949)). This case involves the

discretion of district courts to resentence defendants under the First Step Act of 2018.

Nathaniel Richardson appeals the district court’s order denying in part and granting

in part his motion for reduced sentence pursuant to the First Step Act. Richardson was

sentenced in 1996 to two concurrent terms of life imprisonment on a continuing criminal

conspiracy count and a federal crack cocaine offense. We vacate the district court’s ruling

and remand for further proceedings.

I.

A.

Richardson, along with six other co-defendants, was charged in a multicount

indictment in 1996. Following an eight-day jury trial, Richardson was convicted of

conspiracy to distribute crack cocaine and heroin, in violation of

(Count

1); engaging in a continuing criminal enterprise (CCE), in violation of

(Count 2); distribution and possession with intent to distribute crack cocaine, in violation

of

(a)(1) (Count 3); and money laundering, in violation of

(a)(1)(B) (Counts 15 and 16). He was acquitted of using a firearm in furtherance of

a drug-trafficking conspiracy (Count 10).

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To assist the district judge in sentencing Richardson, the probation officer prepared

a presentence report (“PSR”) and concluded that he was responsible for distributing at least

26.13 kilograms of cocaine base and at least 46.5 grams of heroin. JA 340. Based on that

drug weight, he had a base offense level of 38 for Counts 1 and 3. U.S.S.G. § 2D1.1. 1 JA

367. Probation also attributed him two points for possessing a dangerous weapon in

furtherance of the drug trafficking offense, a four-point enhancement for his leadership role

in the conspiracy, and two two-point enhancements for obstructing justice. Richardson’s

adjusted offense level was 48. JA 367. For Count 2, his CCE count yielded the same

offense level, due to the way U.S.S.G. § 2D1.5, the Guideline for CCE offenses, interacts

with § 2D1.1. 2 The three drug-related counts and two money laundering counts grouped

together for a total offense level of 48. JA 370.

Probation assigned 11 points for criminal history which placed him in Category V,

resulting in a mandatory sentencing “range” of life imprisonment. JA 374. At the

sentencing in January 1997, the district court addressed Richardson’s objections. The

district court sustained his objection to one of the two-point obstruction enhancements and

acknowledged it had double counted a certain amount of crack cocaine. JA 367. Therefore,

the adjusted offense level for Counts 1-3 decreased from 48 to 46 and the crack cocaine

weight decreased from 26.13 to 26.01. JA 367. Further, the court dismissed Count 1 as a

lesser-included offense of Count 2, the CCE conviction. JA 366. The court sentenced

1 Sentencing Guidelines utilized in Richardson’s case refer to guidelines in effect in 1995. U.S. Sent’g Guidelines Manual (U.S. Sent’g Comm’n 1995). 2 Section § 2D1.5 assigns a base offense level of 38, or four plus the offense level from § 2D1.1, whichever is greater. 3 USCA4 Appeal: 22-6748 Doc: 48 Filed: 03/20/2024 Pg: 4 of 17

Richardson to concurrent terms of life imprisonment on Counts 2 and 3. JA 161. The court

sentenced Richardson to 20 years’ imprisonment (the statutory maximum) on the two

money laundering counts, to run concurrently with the life terms from Counts 2 and 3. JA

161, 166.

B.

In January 2019, Richardson, initially proceeding pro se and then supplemented by

a memorandum by appointed counsel, moved for a sentence reduction under § 404(b) of

the First Step Act of 2018, Pub. L. 115–391,

. 3 Counsel for Richardson

argued he was convicted of a covered offense and the district court should therefore apply

an advisory sentencing range of 360 months to life imprisonment. JA 182–83. Counsel

stressed that Richardson had been in federal prison for nearly half of his life (he was 24

when he was convicted and now over 50 years old). Counsel also stressed his minor

disciplinary record, classes, and programming while in prison. The government opposed

Richardson’s motion to reduce his sentence on the basis that Count 3, distribution of crack

cocaine, was not a covered offense. 4 The government also argued the court should deny

relief in the exercise of its discretion based on Richardson’s extensive prior criminal

3 Richardson also filed a pro se motion to reduce his sentence pursuant to

(c)(2). The judge denied Richardson’s § 3582(c)(2) motion, which Richardson does not challenge. 4 The government concedes in its brief that its original position regarding Count 3 is now incorrect. The Supreme Court in Terry v. United States,

(2021), confirmed that Count 3 is a covered offense. 4 USCA4 Appeal: 22-6748 Doc: 48 Filed: 03/20/2024 Pg: 5 of 17

history, weak education and work records, and leadership role in the conspiracy. JA 201.

In July 2019, the district court denied the motion to reduce Richardson’s sentence.

JA 230. While the court agreed that Richardson qualified for relief under the First Step

Act because his conviction for distributing crack cocaine in Count 3 was a covered offense,

the court exercised its discretion to deny relief. JA 235. The court found that Richardson

was the organizer of a conspiracy, and his offense involved “not just drugs, but a long series

of violent acts, including assaulting people, shooting people, threatening them, and offering

money to kill a witness.” JA 235. The court noted that Richardson’s pro se filings

indicated he did not have a significant criminal history, which the court found untrue and

“troubling.” JA 235. 5

Richardson, through counsel, moved for reconsideration. He claimed the

conspiracy did not involve many violent acts. JA 244. Richardson admitted to his

extensive criminal history but argued, as the district court acknowledged during his original

sentencing, the sentence was driven by the amount of crack cocaine and resulting guideline

range. JA 241. Further, he took issue with the court’s reference to “offering money to kill

a witness” because the court sustained an obstruction objection on that basis during

sentencing. Richardson’s counsel fell “on his sword” by acknowledging his original

motion failed to “sufficiently highlight and address” Richardson’s post-offense

rehabilitation. JA 245 n.2. The court denied the motion for reconsideration and affirmed

5 Richardson’s criminal history included thirty convictions, including three convictions for assault and battery, one conviction for involuntary manslaughter, and one conviction for obstruction of justice. JA 319. 5 USCA4 Appeal: 22-6748 Doc: 48 Filed: 03/20/2024 Pg: 6 of 17

the “ultimate holding” of the order that Richardson was eligible for a sentence reduction,

but it would not exercise its discretion to grant a reduction. JA 290.

Richardson appealed the district court’s denial of his motion for reconsideration of

his § 404 motion. JA 293. This Court on appeal vacated the district court’s ruling and

remanded the case to the district court for further proceedings in light of United States v.

Collington,

(4th Cir. 2021), decided while Richardson’s appeal was pending.

United States v. Richardson,

(4th Cir. 2021) (mem.) (“Richardson I”).

Collington, which was overruled in part by Concepcion, held that a “district court’s overall

sentencing authority is constrained by the retroactively applicable statutory maximums.”

. On remand, the district court did not request additional briefing based on

Collington, but issued an order on June 13, 2022, granting in part and denying in part

Richardson’s initial § 404 motion. JA 302–22. That June 13, 2022, order on remand is the

subject of this appeal.

In its order, the district court found Richardson was not eligible for a reduction of

the life term on Count 2, the CCE conviction, in light of United States v. Thomas,

(4th Cir. 2022) (per curiam) (holding CCE is not a covered offense). JA 313–14.

As to Count 3, the distribution of crack cocaine offense, the court concluded that

Richardson was eligible for a reduction. The court determined his advisory guideline range

was life imprisonment, restricted under the terms of this Court’s remand to 480 months’

incarceration on Count 3 because 480 months was the new statutory maximum. JA 318.

The district court evaluated the factors enumerated in

(a) and found the

nature and circumstances were serious and Richardson’s criminal history extensive.

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Importantly, however, the district court, weighing the factors differently from the initial

motion, noted that Richardson was 50 years old, had only two disciplinary infractions at

the start of his prison term, and had not incurred any other violations for 25 years. JA 320.

The court also noted that Richardson obtained his GED, took advantage of numerous

educational and vocational programs, wrote an article titled “Activity Wars and

Addictions,” and served as a member of the prison’s Inmate Reentry Council. JA 320. The

district court thus reduced Richardson’s prison term on Count 3 to 360 months—below the

new statutory maximum. JA 322. Because it had determined Count 2, the CCE count, was

not a covered offense, the court left the life term on that count undisturbed. Richardson

timely appeals the district court’s June 13, 2022 order.

On June 27, 2022, the Supreme Court held that the First Step Act allows district

courts to consider intervening changes of law or fact in exercising their discretion, but that

the First Step Act does not require a court to reduce any sentence. Concepcion,

. After Concepcion, we abrogated Collington in United States v. Reed,

(4th Cir. 2023) (Collington’s holding which required a sentence to be reduced based

on newly enacted statutory maximums is no longer good law after Concepcion). After

Reed, a sentence need not be reduced to the statutory maximum, and we reiterated a judge

has complete discretion to reduce a sentence under the First Step Act.

II.

We review the district court’s denial of Richardson’s motion for a sentence

reduction for abuse of discretion. Reed,

. A district court abuses its

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discretion if its decision to retain or reduce a sentence under the First Step Act is

procedurally or substantively unreasonable.

. A district court also abuses its

discretion when it misapprehends or misapplies the applicable law. League of Women

Voters of N.C. v. North Carolina,

(4th Cir. 2014). Whether discretion

has been abused depends on the bounds of that discretion. United States v. Taylor,

(1988).

Section 404 of the First Step Act gives retroactive effect to the statutory changes

made by sections 2 and 3 of the Fair Sentencing Act and provides that a “court that imposed

a sentence for a covered offense may . . . impose a reduced sentence as if [sections 2 and 3

of the Fair Sentencing Act] were in effect at the time the covered offense was committed.”

First Step Act.

,

, 5222. A covered offense is one

that was committed before August 3, 2010, and for which the “statutory penalties ‘were

modified by section 2 or 3 of the Fair Sentencing Act of 2010.’” Reed,

(quoting 132 Stat. at 5222).

This case involves the application of the “sentencing package doctrine” to the First

Step Act. Under the sentencing package doctrine, when a court of appeals “vacates a

sentence and remands for resentencing, the sentence becomes void in its entirety and the

district court is free to revisit any rulings it made at the initial sentencing.” United States

v. Ventura,

(4th Cir. 2017) (cleaned up). This doctrine recognizes the

holistic approach district courts employ when fashioning a sentence and recognizes that

sentencing on multiple counts is an “inherently interrelated, interconnected, and holistic

process.”

(internal citations omitted). Because reviewing courts recognize there is a

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“strong likelihood” a district court crafts sentences on various counts as an “overall plan,”

the district court should “review the efficacy of what remains in light of the original plan.”

(internal citations omitted).

The district court’s post-remand order found that Count 3, distribution of crack

cocaine, was a covered offense and reduced Richardson’s Count 3 sentence from life

imprisonment to 360 months. On Count 2, the court relied on our decision in Thomas,

which held that CCE offenses are not covered offenses, and left the life term intact.

Thomas,

. Richardson argues the district court erred in not recognizing it

had the authority to reduce Richardson’s CCE offense pursuant to the sentencing package

doctrine. The government counters that this Court should not disturb the sentence because

the district judge has already exercised his discretion in not reducing Richardson’s

sentence, the basis for this Court’s prior remand—Collington—is no longer good law, and

Richardson’s offenses do not function as a package.

We hold that the district court has the discretion to reduce both covered and

noncovered offenses under the First Step Act if they function as a package. A district judge

is best suited to determine in the first instance whether she sentenced defendant’s charges

as a package. We reach this holding for three reasons.

First, we have upheld the use of the sentencing package doctrine in the habeas

context, and resentencing under the First Step Act similarly provides district courts with

broad discretion to fashion a remedy. See United States v. Proctor,

, 542 n.2

(4th Cir. 2022) (observing that § 2255 confers flexible power to district courts to fashion

an appropriate remedy on all counts); United States v. Said,

(4th Cir.

9 USCA4 Appeal: 22-6748 Doc: 48 Filed: 03/20/2024 Pg: 10 of 17

2022) (entitling defendant to habeas relief on some counts but leaving it to the district court

to consider whether to resentence on all counts based on the sentencing package doctrine);

United States v. Chaney,

(4th Cir. 2018) (“[W]e have recognized [the

sentencing-package theory] provides that in appropriate circumstances resentencing on all

counts is a proper remedy under § 2255 for a single unlawful conviction.”).

Allowing judges to utilize the sentencing package doctrine is in line with how

district judges practically sentence defendants and in accordance with the purpose of the

First Step Act. District judges are tasked with one of the most difficult jobs in our criminal

justice system—sentencing defendants. Many district judges, when undertaking this

detail-oriented process, sometimes focus on working out a “formula” to accomplish desired

results in sentencing the whole defendant, as opposed to sentencing discrete charges. See,

e.g., United States v. Townsend,

(D.C. Cir. 1999). Further, the

sentencing package doctrine is applicable here because where one count of a package is

remanded, the district judge must be given the discretion to reconfigure the sentencing plan

to ensure it remains adequate to satisfy the statutory sentencing factors. See United States

v. Mendoza-Mendoza,

(4th Cir. 2010) (“The ultimate question . . . is

whether the sentence is ‘sufficient, but not greater than necessary’ in light of the factors

identified in § 3553(a).” (quoting Kimbrough v. United States,

(2007))).

District judges are entrusted with enormous responsibility and must be given adequate

discretion in resentencing, especially in light of the changing landscape of new statutory

schemes.

Acknowledging district judges’ discretion satisfies the purpose of the First Step Act,

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which is to “ensure greater justice for those subject to a racially disparate sentencing

scheme.” United States v. Swain,

(4th Cir. 2022). Allowing district

judges to resentence interconnected charges furthers the purpose of the Act and gives

district judges the flexibility to tailor a defendant’s sentence holistically based on the new

statutory scheme.

There is textual support for allowing a sentence reduction based on the sentencing

package doctrine. 6 While there are disagreements within the circuits on this issue, 7 we

agree with the reasoning of the Seventh Circuit that the First Step Act does not exclude

noncovered offenses because doing so would impose an “extra-textual limitation” since the

statute did not constrain its application to grouped and noncovered offenses. United States

v. Hudson,

(7th Cir. 2020). While our sister circuits have different

6 The language of the First Step Act does not bar a court from reducing a non- covered offense. The First Step Act states a court that “imposed a sentence for a covered offense” may “impose a reduced sentence as if” the Fair Sentencing Act “were in effect at the time the covered offense was committed.” § 404(b). 7 Compare United States v. Curtis,

(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,

, 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,

(10th Cir. 2022) (holding the First Step Act prohibits a district court from reducing the sentence on a noncovered offense even if it was grouped together under the Sentencing Guidelines), United States v. Contrera, No. 20- 4083-CR,

, 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,

(11th Cir. 2023) (holding First Step Act does not authorize a reduction based on sentencing package doctrine).

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approaches in how the sentencing package doctrine applies to the First Step Act, we align

with the approach that gives district judges the most flexibility in determining whether the

counts function as a package, and how to resentence those defendants eligible for a First

Step Act reduction.

The government has three main contentions to counter Richardson’s request to

remand his sentence again, though it does not argue specifically that the sentencing

package doctrine should not apply to the First Step Act. 8 First, the government argues the

district court appropriately used its discretion in not reducing Richardson’s life sentence in

Count 2, the noncovered CCE offense. It notes the district court denied relief on all counts

and again denied a reduction when Richardson filed a motion to reconsider. The

government argues that the court only reduced Richardson’s covered offense to 360 months

because this Court required it do so on remand based on Collington and used its discretion

to leave the life sentence on the CCE offense undisturbed. In short, the government’s

position is the district court consistently made clear its wishes to maintain Richardson’s

life sentence and this Court should therefore not touch Richardson’s sentence.

We are not persuaded by the government’s position. First, if the district court was

exercising its discretion in denying a reduction on the CCE offense, it should have stated

8 The government would be hard pressed to argue the sentencing package doctrine does not apply to the First Step Act, as it has conceded the argument in other recent cases in front of this Court. Response to Fed. R. App. P. 28(j) letter at 2, United States v. Watkins, No. 19-7899 (4th Cir. Sept. 18, 2023), ECF No. 28; United States v. Wood, No. 20-6508,

, at *3 (4th Cir. Aug. 1, 2023). 12 USCA4 Appeal: 22-6748 Doc: 48 Filed: 03/20/2024 Pg: 13 of 17

as much. 9 Instead, it indicated that it was legally constrained from even considering

whether it could order a First Step Act reduction on Count 2 because CCE was not a

covered offense based on our decision in Thomas. It then stated that, because CCE was

not a covered offense, it was unable to review Count 2 “on the merits.” JA 314. Then the

court evaluated Count 3 and reduced Richardson’s sentence to 360 months, instead of the

480-month statutory maximum we prescribed to the district judge post-Collington.

Second, the trial judge appears to have had a change of heart in his evaluation of the

§ 3553(a) factors from the first order denying a First Step Act reduction and the post-

remand order. In the first order, the judge indicated he would exercise his discretion not

to reduce Richardson’s sentence based on the § 3553(a) factors. In the post-remand order

the judge changed his position and noted that Richardson was unlikely to commit crimes,

had spent half his life in prison, was deserving of a reduction, and that other co-defendants

had received sentence reductions. Because the judge in his subsequent ruling indicated

Richardson was deserving of a sentence reduction, the government’s position ignores the

clear change in the way the district court evaluated the sentencing factors and runs counter

to the purposes of the First Step Act.

9 The government points out that the district court has made clear in other cases that it may revisit sentences on noncovered offenses and therefore this Court should infer the district judge knew it had the discretion to do so here and declined to use it. See, e.g., Jones v. United States,

, 752 (E.D. Va. 2020) (“Because . . . district courts impose ‘sentences by considering all of the relevant factors as a whole,’ when a new sentence is imposed, a whole sentence on all counts should be imposed.” (cleaned up)); Wright v. United States,

, 598 (E.D. Va. 2019). We are not persuaded by the government’s contention. The district judge could have used the same language he had used previously in other cases and declined to exercise his discretion to grant any sentence reduction. 13 USCA4 Appeal: 22-6748 Doc: 48 Filed: 03/20/2024 Pg: 14 of 17

Next, the government dedicates pages to the argument that we should not disturb

the district court’s ruling because our previous decision to vacate and remand Richardson’s

sentence based on Collington has now been abrogated. Reed,

. While

Reed abrogated Collington, appellate courts decide cases based on the law that exists at the

time, and at the time of this Court’s first remand, Collington was the law. Further, we

acknowledge the government’s concerns with finality. However, equally important is

recognizing the bounds of a district court’s discretion to reduce sentences under the First

Step Act, which prioritizes fairness in sentencing over finality in some instances.

We re-affirm our decision in Reed that the district judge is not required to reduce

any sentence under the First Step Act. All the district court must do, per Concepcion, is

consider all non-frivolous arguments raised by the parties. However, the district court

mistakenly believed it was constrained from considering a reduction on the CCE offense

as part of a package theory. Therefore, what the government labels as another disturbance

in Richardson’s sentence, we view as a directive to ensure Richardson’s sentence is an

expression of the judge’s intentions under a First Step Act reduction and not a mistake

because of this reviewing Court’s lack of clarification on this issue. It would be

inappropriate to leave intact a decision that may not reflect how the district court would

have sentenced Richardson had it recognized its authority to resentence his counts as a

package. 10

10 Further, the government’s position would, in effect, have us re-review and relitigate previous appeals based on since-decided precedent. We simply look at the order being appealed, which here is the post-remand order.

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In its final argument, and for the first time in Rule 28(j) letters, the government

argues this Court should reject a sentencing package theory for a noncovered CCE offense.

The government states we should follow the Third Circuit’s decision in United States v.

Junius, which rejected the package theory for a drug-related murder offense.

(3d Cir. 2023). The government’s position is that Section 404 of the First Step

Act authorizes a district court to reduce a sentence for a noncovered offense “to the extent

that the noncovered offense formed a part of a single, integrated sentencing package with

a covered offense.” Response to Fed. R. App. P. 28(j) letter at 1, ECF No. 41 (citing Brief

for the United States in Opposition at 11, Files v. United States, No. 22-1239 (U.S. Oct.

13, 2023)). The government argues Richardson’s CCE and crack distribution offenses do

not function as a package because the conduct on the CCE offense was a violent criminal

enterprise which was discrete from crack distribution conviction. 11

We decline the government’s invitation to decide in the first instance whether

Richardson’s charges function as a package. It would be inapposite to defer to the judge’s

holistic process by which she sentences in one instance, and in another determine as a

reviewing court that multiple counts are not interconnected. We believe the trial judge

would be better situated to determine whether the noncovered counts were interrelated

when she initially sentenced the defendant. This approach is in line with what this Court

11 The government’s reliance on Junius is misplaced. Junius’s murder and drug charges were independent. We find those facts and charges distinguishable. Because we remand for the district court to evaluate whether Richardson’s charges qualify as a package under the sentencing package theory, we do not find that part of Junius’s analysis relevant for our purposes. 15 USCA4 Appeal: 22-6748 Doc: 48 Filed: 03/20/2024 Pg: 16 of 17

has done when remanding a case with a potential sentencing package doctrine application

in the habeas context. Proctor,

n.2 (stating the district court should consider

in the first instance whether the sentencing package doctrine applies under its broad power

to fashion its own remedy on all counts); Said,

(entitling defendant to

habeas relief on some counts but leaving it to the district court to consider in the first

instance whether to resentence on all counts based on the sentencing package doctrine).

On remand, the district court might consider whether the noncovered offenses

represent a freestanding and distinct sentence from that of the covered offenses, or whether

the sentence reflects an attempt to achieve an overall sentence without regard to the

component parts. See, e.g., Townsend,

(stating the sentencing package

theory is appropriate where the judge indicated he needed to “work out the formula” to

accomplish the overall term of imprisonment desired). Regardless, the best entity to

determine the intention of the district court’s sentence is the district court itself, not the

reviewing court.

While we express no opinion on what action the district court should take, there are

some hints in the record these counts do not represent freestanding sentences distinct from

each other. For example, the indictment indicates the CCE offense and distribution of

crack cocaine offenses are interconnected. The CCE offense in Richardson’s indictment

alleges that Richardson violated § 841 and § 846, “such violations including, but not

limited to those violations alleged in the instant indictment, specifically Count One and

Count Three [distribution of crack cocaine].” J.A. 31. See also Ventura,

(agreeing with proposition that when a defendant is found guilty in a multicount

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indictment, there is a strong likelihood the district court will craft a disposition in which

the sentences on various counts form part of the overall plan). Moreover, the CCE and

distribution offenses were grouped together under the Guidelines for sentencing purposes,

a factor other courts have relied on in applying the sentencing package doctrine. See Curtis,

(noting that grouping for sentencing is “perhaps the most common way

[] to show interdependence,” though there “could be other indicia in the record”). 12

Because the judge misapprehended the bounds of his discretion, we remand this

case to the district court with instruction that its discretion under Section 404 of the First

Step Act includes the authority to use the sentencing package doctrine. Without expressing

any opinion on what action the district court should take, we reaffirm the district court’s

discretion to fashion a sentence he deems most appropriate. We leave it to the district court

to consider in the first instance whether to resentence Richardson under the sentencing

package doctrine.

VACATED AND REMANDED WITH INSTRUCTIONS

12 These hints are not exhaustive and just provide some examples from this record. The consideration of interconnectedness is not narrow, and we leave it up to the district judge to determine whether changes in the new statutory scheme affected his sentence on other counts. Whether counts are interrelated as a package is not confined to situations where the Guidelines group them together. For example, if the terms of imprisonment for a covered offense necessarily affected a judge’s severity of the sentence of another noncovered offense, the judge could apply the package doctrine and resentence on both. We leave this decision up to the district court. Further, this opinion does not suggest that for a noncovered offense to qualify for resentencing it is necessary it be part of a package, we simply state that it is sufficient for a noncovered offense that formed a package to qualify for resentencing. 17