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Cobham v. United States

United States District Court, Fourth Circuit

December 8, 2013

DIALLO COBHAM, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Case No. 04-cr-173-AW

MEMORANDUM OPINION

Alexander Williams, Jr. United States District Judge

Pending before the Court is Petitioner/Defendant Diallo Cobham’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Doc. No. 60. For the reasons discussed below, Petitioner’s Motion will be DENIED.

I. BACKGROUND

Following a three-day jury trial, on October 20, 2004, Petitioner was convicted of all three charges from his indictment: (1) conspiracy to distribute with intent to distribute 5 or more kilograms of cocaine, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute 500 or more grams of cocaine, in violation of 21 U.S.C. § 841(b)(1)(B); and (3) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The Pre-Sentence Report (“PSR”) from U.S. Probation and Pretrial Services contained a detailed account of Petitioner’s criminal history, including two convictions dated April 24, 1997 (when Petitioner was 21) and November 6, 2001 (when Petitioner was 26). Pursuant to § 4A1.1(a) of the United States Sentencing Guidelines, the PSR recommended a 3 point enhancement to Petitioner’s criminal history category for the April 24, 1997 conviction.[1] PSR ¶ 56. The April 24, 1997 conviction was described as follows:

1) Possession with Intent to Distribute;
2) Possession with Intent to Distribute: School Bus/Property;
3) Possession of CDS. Circuit Court for Somerset County, Maryland, Case 97CR05060. On 12/03/97, the defendant was found guilty and sentenced as follows: Ct. 1, 5 years suspended all but 18 months, 2 years supervised probation; C 2, 5 years, suspended and consecutive to Count 1, 2 years supervised probation; Ct. 3, merged. Paroled 04/17/98; parole closed by expiration on 02/21/99. VOP held 02/14/00, probation revoked and defendant sentenced to 1 day imprisonment.

Id. Pursuant to U.S.S.G § 4A1.1(b), the PSR recommended a 2 point enhancement based on the November 6, 2001 conviction, [2] which was described as follows:

Felony Sale or Transportation of a Controlled Substance. Los Angeles County Superior Court, Los Angeles, California, Case SA043606. On 01/16/02, the defendant was sentenced to 270 days in jail, credit 2 days time served, 3 years supervised probation, $200 fines and costs.

Id. ¶ 62.

Final Judgment was entered against Petitioner on January 28, 2005, and he was sentenced as follows: 240 months imprisonment on Count 1, 240 months imprisonment on Count 2, and 120 months imprisonment on Count 3, all counts to run concurrently. Doc. No. 45. Petitioner timely appealed the judgment to the Fourth Circuit, which affirmed his conviction and sentence on February 2, 2006. United States v. Cobham, No. 05-4175, 2006 WL 250721 (4th Cir. 2006) (unpublished per curiam opinion). The Fourth Circuit rejected Petitioner’s Sixth Amendment claim that the district court improperly enhanced his sentence based on prior convictions. Id. At *3. Petitioner thereafter filed a petition for certiorari to the United States Supreme Court, which was denied on April 19, 2006. Cobham v. United States, 547 U.S. 1086 (2006).

More than two years later, the Government filed a Rule 35 Motion to reduce Petitioner’s sentence for substantial assistance. Doc. No. 57. On June 11, 2008, the Court granted the Motion and entered an Amended Judgment reducing Petitioner’s sentence as follows: 151 months imprisonment on Count 1, 151 months imprisonment on Count 2, and 120 months imprisonment on Count 3, all counts to run concurrently. Doc. No. 59.

Petitioner filed his pending § 2255 petition on May 16, 2013. Doc. No. 60. Petitioner argues that his sentence should be vacated pursuant to the Supreme Court’s holding in Carachuri-Roseno v. Holder, 560 U.S. 563 (2010), and the Fourth Circuit’s holding in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). Petitioner argues that the rules announced in these decisions should be applied retroactively and that the doctrine of equitable tolling ...


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