United States v. Montrell McSwain, 25 F.4th 533

In 2007 McSwain was convicted of a multi-drug conspiracy ( >1 kg heroin and >50 g cocaine base) and received a 240-month mandatory minimum based on a 1999 Illinois cocaine conviction; total sentence 300 months.
The Fair Sentencing Act of 2010 reduced penalties for crack but was not retroactive; the First Step Act §404 (2018) permits district courts to discretionarily reduce pre‑August 3, 2010 sentences as if the Fair Sentencing Act were in effect.
McSwain filed a pro se §404(b) motion in Sept. 2019; the district court denied relief on Aug. 25, 2020, stating he was ineligible because a heroin quantity triggered a mandatory minimum.
The parties now agree (and the government concedes) that a multi‑drug conspiracy that included cocaine base can qualify as a "covered offense" under §404(a) (i.e., Step 1 eligibility).
The Seventh Circuit held the district court erred by failing to meaningfully exercise its discretion under Step 2 and by ambiguously conflating eligibility with the merits; the case is vacated and remanded for an explicit discretionary resentencing analysis (including, if the district court chooses, consideration of intervening precedent such as Ruth).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a multi‑drug conspiracy that included crack cocaine is a "covered offense" under §404(a)	McSwain: inclusion of cocaine base in the conspiracy renders the conviction eligible for §404 relief	Gov't initially: not a covered offense; later conceded that such conspiracies are eligible	Court accepted government concession; Step 1 eligibility satisfied
Whether the district court abused its discretion in denying §404(b) relief without a full review	McSwain: district court failed to recalculate statutory range, misapplied eligibility, and abdicated its discretion (did not consider intervening caselaw or pro se circumstances)	District court: denial justified because heroin quantity produced a mandatory minimum, so relief unavailable	Vacated and remanded: district court abused discretion by not exercising its authority; must undertake a complete Step 2 review (may, but is not required to, apply intervening precedent)

United States v. Fowowe, 1 F.4th 522 (7th Cir. 2021) (discretionary denial of §404(b) reviewed for abuse of discretion; courts may—but need not—apply intervening precedent)
United States v. Hudson, 967 F.3d 605 (7th Cir. 2020) (two‑step §404 analysis: eligibility then discretionary relief)
United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) (Illinois positional‑isomer statute broader than federal cocaine definition; can affect predicate‑offense status)
United States v. Corner, 967 F.3d 662 (7th Cir. 2020) (procedures for §404 motion review; §404 relief is discretionary)
United States v. Blake, 22 F.4th 637 (7th Cir. 2022) (district court must recalculate statutory penalties when required by the Fair Sentencing Act/First Step Act operation)
United States v. Concepcion, 991 F.3d 279 (1st Cir. 2021) (addresses whether district courts must consider intervening developments when exercising §404 discretion)
Terry v. United States, 141 S. Ct. 1858 (2021) (Supreme Court decision referenced by parties on eligibility issues)
United States v. Hible, 13 F.4th 647 (7th Cir. 2021) (if only some counts are covered, district court may revise the entire sentencing package)