DARLA J. COULTER, RMR/CRR

OFFICIAL FEDERAL COURT REPORTER

85 MARCONI BLVD., COLUMBUS, OHIO 43215

(614) 719-3245

 UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

UNITED STATES OF AMERICA, )

 )

 PLAINTIFF, CASE NO. 2:18-CR-00002 )

 )

 vs. )

 )

WYDELL L. COBB, )

 )

 DEFENDANT. )

________________________________ )

TRANSCRIPT OF SENTENCING HEARING PROCEEDINGS 

BEFORE THE HONORABLE EDMUND A. SARGUS, JR. 

UNITED STATES DISTRICT JUDGE 

NOVEMBER 15, 2018; 2:45 P.M. 

COLUMBUS, OHIO 

APPEARANCES: 

FOR THE PLAINTIFF: 

 United States Attorney's Office 

 By: KEVIN W. KELLEY 

 Assistant United States Attorney 

 303 Marconi Boulevard 

 Columbus, Ohio 43215 

FOR THE DEFENDANT: 

 PETERSON CONNERS LLP 

 By: RASHEEDA Z. KHAN, ESQ. 

 545 Metro Place, Suite 435 

 Dublin, Ohio 43017 

- - - 

 Proceedings recorded by mechanical stenography, 

transcript produced by computer. 
 2

THURSDAY AFTERNOON SESSION 

NOVEMBER 15, 2018 

- - - 

THE DEPUTY CLERK: Case Number 2:18-CR-2, defendant

number 2, United States of America vs. Wydell L. Cobb.

Will counsel and defendant please approach.

THE COURT: Counsel, good afternoon to both of you.

Starting with the government, would you please enter

your appearances.

MR. KELLEY: Assistant United States Attorney Kevin

Kelley. Good afternoon, Your Honor. I apologize for my part

in the delay of the proceedings.

THE COURT: You were in front of another Court, I

understand; right?

MR. KELLEY: I was in front of Judge Graham and he

wouldn't let us go.

MS. KHAN: Good afternoon. Rasheeda Khan on behalf of

Wydell Cobb, Your Honor.

THE COURT: Good afternoon.

Mr. Kelley, would you please on the record recite where

we are in this case?

MR. KELLEY: Yes, Your Honor.

Mr. Cobb previously entered a guilty plea to Count 3 of

the indictment which charges him with possession with the

intent to distribute 500 grams or more of fentanyl.

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The Defendant Cobb is now before this Court for

sentencing.

THE COURT: Thank you.

Mr. Cobb, have you received a copy of the presentence

investigation report in this case?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And have you had a chance to read the

entire report and discuss it with your counsel,

Ms. Rasheeda Khan?

THE DEFENDANT: Yes.

THE COURT: All right. Ms. Khan, we have two

unresolved objections to the presentence report. We'll take

each of those one at a time and you may address the first one

if you wish. I have your submissions, of course.

MS. KHAN: Thank you, Your Honor.

The first one relates to the relevant conduct that

includes the incident on September 1, 2007, and as a result of

that relevant conduct being included in the calculation,

Mr. Cobb picks up an additional two criminal history points

because he was under supervision at the time of that situation.

THE COURT: So it's not the amount of drugs; it's the

time period involved.

MS. KHAN: It's the time period, and I think that

Mr. Cobb's additional concern or initial concern when the

initial PSI came out is my concern is that I don't want His

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Honor to think that I was involved in this other drug

transaction and so that was the initial objection. And then

when the final PSI came out, it included the jump in the

criminal history.

THE COURT: That's because of the two additional

points because he was on supervision during the first incident

but not the second.

MS. KHAN: That's right. And it's our position

that -- and I guess at this point, in addition to the argument

in the sentencing memorandum, just in response to the

government's sentencing memo, there still fails to be a

connection between that situation on September 1 and his arrest

in December. He was not arrested, he was not charged, he did

not -- there was no finding of possession.

I believe that the government asserts that at the time

of that situation in September, Mr. Cobb was in an automobile

that was later searched and found to contain drugs and a gun;

however, someone else has accepted responsibility to that gun.

As a matter of fact, it's my understanding he did accept

responsibility immediately and then was later charged with the

drugs.

The government further asserts that Mr. Cobb was in the

house that was searched. That's not correct. Mr. Cobb was

never in that house.

And, furthermore or moreover, the government has failed

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to indicate how that is connected to the offense of conviction

and that, even under the broad definition of what constitutes

relevant conduct, we would submit that the government has

failed in its burden of demonstrating how that offense relates

to the December 1 arrest.

THE COURT: All right. The problem -- I don't mean to

cut Mr. Kelley off. The probation officer has indicated this

is part of the same course of conduct. It's not charged, I

understand, but it's drug trafficking in both instances. And I

think this may come back into play under 3553(a), but at this

point I would find -- and we'll talk separately about the

criminal history category. That's a different matter also.

But in terms of the two being part of the same course of

conduct, I'm going to find that that part of the objection I'm

going to overrule, and the next part -- and we're going to

break this into three parts, not two. 

The next part is going to be minor role, and the third

part is going to be criminal history category. So the second

part has to do with minor role and you may address that, if you

wish.

MS. KHAN: Thank you, Your Honor.

Just as we outlined in the sentencing memorandum, it's

our position that Mr. Cobb is deserving of a minor role

reduction, and the government's discovery and even during the

discussions of its understanding of the whole drug trafficking

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organization, Mr. Cobb came into the picture way late. And, in

fact, when they were under surveillance, they had no

understanding of where Mr. Cobb even lived.

So that coupled with Mr. Cobb's assertion that he had no

ownership in those drugs, he didn't stand to benefit

immediately financially from those drugs, he had no

understanding of the scope and the structure of the drug

activity, didn't participate in the planning or organization,

he had no decision making authority or influence of any kind

and stood to benefit almost nothing from the criminal activity,

and for those reasons, we would submit he is deserving of a

role reduction.

THE COURT: Mr. Kelley, you may respond.

MR. KELLEY: Well, Your Honor, unfortunately, we don't

know more, and Mr. Cobb is simply being held accountable for

what he was found in possession of, along with the currency

that he was found in possession of. And so the activity from

several months before does involve related players in the drug

conspiracy, and he's only being held accountable essentially

for the drugs that he was found with that day. So I don't see

how we can distinguish him and talk about hypothetically his

role and how much he gained to benefit, there's no evidence of

that. So under the circumstances, I don't think a role

adjustment is appropriate.

THE COURT: Ms. Vincent, anything additional from the

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probation office?

PROBATION OFFICER: No, Your Honor. Thank you.

THE COURT: Thank you for a good report.

I don't think he's more culpable than the average, but I

don't think there's anything in here that would indicate to me

that he would be entitled to a minor role other than the time

that he was involved, and he's not having counted as relevant

conduct anything that he didn't personally involve himself in

so I'm going to overrule the objection.

I do want to hear both of your views with regard to

criminal history. What we have here are two prior convictions,

one for carrying a concealed weapon in 2001 and the other being

a driving under the influence charge in 2015. Those two

offenses score two points, but then there's an additional two

points for the offense conduct being within a term of

supervision of another conviction which places him in the

category of three. I'm not suggesting he would be a one, I

don't see that. I guess the question in my mind is whether he

should properly be a two or a three, and I would invite your

comments starting with Ms. Khan.

MS. KHAN: Well, Your Honor, in light of His Honor's

conclusion relating to the relevant conduct, it does -- the

fact that he's under supervision sort of puts us in --

THE COURT: Well, he was under supervision for -- I

don't minimize drunk driving but it was a misdemeanor.

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MS. KHAN: And that's exactly where I'm going,

Your Honor, that essentially bumping him up into another

criminal history category because of that low-level offense and

that he had been on supervision, you know, for so long, we

would submit that even if he's captured in that relevant

conduct that his criminal history is overstated. And, as we

indicated in the sentencing memorandum, this is somebody who

has never been incarcerated for more than 10 months, and now

he's looking at a sentence of 10 years. And if the Court

accepts the recommended guideline sentence, it would be even

higher. We would submit that this is somebody with no history

of drug trafficking before and that, in light of the low-level

offenses he had before and the fact that the supervision was

for a misdemeanor offense, that the criminal history is

overstated and we would ask that he receive a reduction putting

him in category two.

THE COURT: Mr. Kelley, your view?

MR. KELLEY: Well, even though it was accurately

scored, Your Honor, I actually do agree with Ms. Khan. I can't

believe I just said that out loud.

THE COURT: We'll order the transcript.

MR. KELLEY: I do think in Mr. Cobb's situation,

criminal history three does probably overstate given the

relative minor nature and the remote time involved so I would

not oppose the Court going to criminal history category two.

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THE COURT: All right. Ms. Vincent, do you wish to be

heard on that issue?

PROBATION OFFICER: No, Your Honor. Thank you.

THE COURT: There's no question you scored it

correctly. The question is whether it's overstated given the

type of crimes in the past. One is a misdemeanor and the other

is seven years old. So I am going to find the criminal history

category should be a two and an offense level of 31. That

yields a final guideline range of 121 to 151 months.

MS. KHAN: I'm sorry, can you say that again?

THE COURT: 121 to 151.

So I have received memoranda from each of you, and I

would invite any additional comments you would like to make

again start withing you, Ms. Khan.

MS. KHAN: Well, Your Honor --

THE COURT: Just one moment. I want to make sure my

math is correct. 121 to 151?

MR. KELLEY: Yes, Your Honor.

THE COURT: Very good. Ms. Khan? 

MS. KHAN: It's already laid out in the report and in

the sentencing memorandum that this is somebody who has really

no violent history, no significant history of drug involvement,

and that he's stepped in it in a big and horrible way. And

while certainly the dangerousness of the substance can't be

overstated, I think that a 10-year mandatory minimum without

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any opportunity to get below is too harsh of a punishment and

it should certainly be no higher. He's already at 121 at the

bottom, and we would submit that anything longer than the 10

years is far greater than necessary to appropriately punish

this young man who has lost out on seeing the birth of his son,

wasn't there when his father passed away. He certainly was

raised in a situation that no child should have been raised in,

and as a young man he deserved better and there were a lot of

opportunities he should have had that should have given him the

chance to associate with different people and get his life in

order. I would also note the tragic part of some of this

criminal history is he could have gotten some part of this

expunged. There were opportunities in there that he could have

gotten back on track and --

THE COURT: He could have had the safety valve, too,

if he had gotten the CCW count expunged a few years ago. It's

past the time to do that, but that's hindsight.

MS. KHAN: Right. And that's so tragic for somebody

who time and time and time again really needed a break and

didn't get it.

And for those reasons, Your Honor, we would ask that he

just receive the minimum of 10 years.

THE COURT: Thank you.

Mr. Cobb, you are not required to speak, but if you

would like to, I'd be happy to listen to you.

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THE DEFENDANT: Yes, Your Honor.

I just want to apologize to the Court and the people who

could be affected by this epidemic. Like, I understand now

like from the cause and effect of the situation that I'm in,

like because of, like, I have a friend I lost in this situation

since I've been incarcerated in the same type of situation. I

just want to get back to my family as soon as possible to make

sure my kids don't have to grow up the same way and go through

the same things not having a dad around, and I just don't want

them to have to go through anything like this missing they dad

in they life so I just want to get back as soon as possible.

And I understand that, you know, I take full responsibility for

my actions and I just -- I just want to apologize.

THE COURT: Have you read anything about or heard

anything about the residential drug treatment program through

the Bureau of Prisons?

THE DEFENDANT: I read a bit on it.

THE COURT: You have to volunteer for that.

THE DEFENDANT: Okay.

THE COURT: I'd like to know if you're interested.

You've been honest with your probation officer about marijuana

use for a number of years and it looks to me that that's been a

holdback to some of the things you like to do. The Bureau of

Prisons, because you'll have time on your hands, is an

excellent place to use some of that time.

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Are you interested?

THE DEFENDANT: Yes.

THE COURT: All right. It's one of the few ways you

can earn time off a sentence, too, actually. In fact, it's the

only way.

MS. KHAN: I'm sorry, Your Honor. I would also like

to acknowledge that Mr. Cobb's family has appeared in court

today.

THE COURT: Good. Glad they're here. Thank you.

Mr. Kelley?

MR. KELLEY: Well, Your Honor, I do hope Mr. Cobb will

take advantage of the opportunities in the BOP. I do want to

note that at the time that this incident went down, he did warn

officers involved that we were dealing with a much more

dangerous substance than might otherwise be realized and I told

him at the time of his arrest, and I'll say it again, I

appreciate that he did take that step to help out.

In this situation we're limited on the sentence. The

Court can impose the statutory minimum; we certainly don't

oppose. I just hope Mr. Cobb will take advantage of the

opportunities in the future and maybe minimize the damage.

THE COURT: Thank you.

And, Ms. Vincent, again, I thank you for a good report.

Do you have anything additional?

PROBATION OFFICER: No, thank you, Your Honor.

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THE COURT: Thank you.

The defendant, Wydell Cobb, is before me for sentencing

after pleading guilty to Count 1, possession with intent to

distribute 400 grams or more of fentanyl.

I am to walk through a three-part analysis in coming up

with the appropriate sentence.

The first is to correctly compute the sentencing

guidelines which we have just worked through. 

The guideline offense level is 31, and the criminal

history category is two. That yields a sentencing guideline

range of 121 to 151 months. And, to be clear, this case

requires an imposition of at least a 10-year or a 120-month

sentence given the quantity of the fentanyl involved.

The second part of the analysis is to look at the

sentencing guidelines themselves to see if there are any

appropriate departure bases, and I find there are none. 

And then the last and usually most difficult part is to

look at a series of factors in the federal criminal code under

Section 3553(a). There are seven. All but one of those apply

for consideration in this case.

I am first to consider the nature and the circumstance

of the offense together with the history and the

characteristics of the defendant.

The offense conduct is well laid out in the presentence

report. The defendant was essentially trafficking in fentanyl,

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and there were firearms recovered which counted in the offense

conduct we've just described as far as two additional points.

As everyone who deals in this area knows, fentanyl is

deadly, very dangerous. There have been hundreds of people

just in Franklin County who have died from this drug, and there

was a large quantity involved. The amount of fentanyl in this

case is between 1.2 kilograms and 4 kilograms so the amount is

significant and the amount of potential harm is also

significant.

I'm also to balance that against the defendant's history

and characteristics and, Ms. Khan has said it, this is a very

dismal sentencing report because it goes through someone who

really the only way I can put it, Mr. Cobb, fell through the

cracks. You didn't have parental supervision, you didn't have

state intervention. There were a lot of things that I wish I

had the power to change from reading this. I suppose the only

good thing I can see in here is that you're 29 years old.

You're going to have some -- you're going to have a long

sentence ahead; you understand I have to give you at least 10

years. But at the same time you'll have some opportunities

starting with the residential drug treatment program, but there

will be other opportunities as well. I sincerely hope that you

take advantage of those while you're in the Bureau of Prisons.

There's vocational training, there's mental health treatment,

there are drug addiction issues, and there are things that you

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can address in the hopes that when you come out, you can be the

family man you just described you want to be, and hopefully

you'll have the opportunity to use this time productively. I

think you'll have that chance, and I urge you to take advantage

of that. But I do note that in terms of history and

characteristics, the defendant had a very grim upbringing and

almost no parental supervision.

With regard to the need for the sentence imposed, I am

to look at a sentence that reflects the seriousness of this

crime, promotes respect for the law, provides just punishment,

and then affords adequate deterrence as well.

Another factor I'm to consider is the protection of the

public. You understand, Mr. Cobb, part of the reason this

sentence is so stiff, as required by Congress, is because

fentanyl is so dangerous. You mentioned you had a friend who

passed from this very substance since you've been incarcerated,

and I'm hoping that that has convinced you that this is

definitely not where you want to be when you come out.

I'm also to look at any statements issued by the

sentencing commission. I am to look to avoid unwarranted

sentence disparities with regard to other people with similar

conduct.

Taking all of this into consideration, it will be the

judgment of the Court that Mr. Cobb will serve a sentence of

120 months, and that will begin as of December 1 of 2017, the

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day he was arrested and detained.

He will serve a term of supervised release of five years

upon his release. He will not pay any fines since he has no

ability to pay a fine. There is no issue of restitution. He

will pay a $100 special assessment, and he will forfeit the

matters agreed to in the plea agreement.

I recommend that he be placed, when he becomes eligible,

in the residential drug treatment program. You'll be eligible

later in the sentence. Right now I think you have to be within

60 months of discharge because they want this treatment to

begin as you're stepping down towards release so that can be in

the future and, by imposing this now, it will get you in line

and hopefully you'll be eligible when the time comes.

With regard to the terms of supervision, he will comply

with the standard terms. In addition, he will participate in

any type of controlled substance abuse testing as directed by

his probation officer together with any treatment directed by

his probation officer. And, if appropriate, he will

participate in vocational educational services as directed by

his probation officer.

Are there any other sentencing issues that I've not

addressed or any other matters you would like to raise,

counsel?

MS. KHAN: No, Your Honor.

MR. KELLEY: No, Your Honor.

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THE COURT: All right. I believe there is a waiver of

appeal. If you don't mind, I'll ask you out of court to

address that issue with Mr. Cobb.

MS. KHAN: Yes, Your Honor.

THE COURT: All right. Counsel, thank you very much.

With that, the clerk may call the next case.

(Proceedings concluded at 3:05 p.m.)

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C E R T I F I C A T E

I, Darla J. Coulter, do hereby certify that the 

foregoing is a true and correct transcript of the proceedings 

before the Honorable Edmund A. Sargus, Jr., Judge, in the 

United States District Court, Southern District of Ohio, 

Eastern Division, on the date indicated, reported by me in 

shorthand and transcribed by me or under my supervision. 

 s/Darla J. Coulter

 Darla J. Coulter, RMR, CRR 

 Official Federal Court Reporter 

 September 30, 2021 

 

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