UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

UNITED STATES OF AMERICA, §

§

v. § 2:04-CR-0025

§

WARREN DOUGLASS COBLE, JR. §

REPORT AND RECOMMENDATION TO DISMISS

“MOTION TO REDUCE SENTENCE PURSUANT TO § 3582(c)(2)” 

Came for consideration the Motion to Reduce Sentence Pursuant to § 3582(c)(2), which

the Court construes as a Motion to Set Aside, Correct or Vacate Sentence Pursuant to 28 U.S.C.

§ 2255, filed by defendant WARREN DOUGLASS COBLE, JR., on September 13, 2010. For

the reasons set forth below, defendant’s motion is time-barred and it is recommended that the

motion be DISMISSED.

I.

PROCEDURAL HISTORY

WARREN DOUGLASS COBLE, JR., federal prisoner no. 30654-177, appeared in the

United States District Court for the Northern District of Texas, Amarillo Division, and pled

guilty to a one count indictment charging a violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(A),

possession with intent to distribute fifty grams or more of a mixture and substance containing a

detectable amount of cocaine base. Accompanying the plea agreement was a factual resume

setting forth the elements of the offense and containing admissions by Coble that he possessed

285.1 net grams of cocaine base and 86.5 net grams of marijuana.
Page 2 of 6

Defendant’s original sentence of 262 months was vacated and remanded on the parties’

joint motion to vacate premised on the Booker/Fanfan decision. At re-sentencing, the district

court sentenced defendant to a term of 240 months imprisonment with a five-year term of

supervised release.

Defendant filed a notice of appeal on July 15, 2005, which was dismissed by the United

States Court of Appeals for the Fifth Circuit on April 19, 2006. Defendant’s petition for

rehearing en banc was denied May 22, 2006, and mandate issued May 31, 2006.

On September 13, 2010, defendant filed the present Motion to Reduce Sentence Pursuant

to § 3582(c)(2).

II.

DEFENDANT’S ALLEGATIONS

In his motion to vacate, defendant presents the following claims:

1. Defendant challenges his sentence based on crack or cocaine base, instead of

cocaine; 

2. the failure to show the quantity of the cocaine base, 

3. the sentence “enhancement” based on his status as a career criminal,

4. the absence of notice from the Government of intent to seek enhancement, and,

5. Without contending that the Court relied on an abstract of judgment, defendant

nevertheless attacks such reliance as a basis to justify sentencing under the

Sentencing Guidelines as a career offender.

To support the attacks set forth above, defendant argues he was given a 262 month

sentence for the possession of cocaine with intent to distribute and that the quantity of cocaine
1

Title 18 U.S.C. § 3582(c)(2) provides as follows:

(c) Modification of an imposed term of imprisonment.–The court may not modify a term of imprisonment once it has

been imposed except that–

* * * 

(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the

Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the

factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.

Page 3 of 6

base was never charged or proven to a jury beyond a reasonable doubt. Defendant also argues

the sentence exceeded the statutory maximum absent a showing of drug quantity or other

sentence enhancing factors. Defendant further argues that the government did not timely comply

with the § 851(a)(1) notice requirement and, therefore, the district court did not have jurisdiction

to enhance defendant’s sentence under the recidivist provisions of § 841(b). Defendant contends

the Court could not rely on an abstract of judgment to justify sentencing enhancement under the

Sentencing Guidelines Manual.

Defendant asks that his sentence be vacated and that he be immediately released or

sentenced to 24-30 months based on 281.1 grams of cocaine and a resultant offense level of 17.

III.

§ 3582(c)(2) AND § 2241

Defendant relies on 18 U.S.C. § 3582(c)(2)1 as the sole basis for jurisdiction in this case;

however, eligibility for consideration under this statute is triggered only by an amendment to the

Sentencing Guidelines. Defendant references no such amendment and has failed to show the

Court has jurisdiction to grant his motion under § 3582(c)(2). Moreover, plaintiff is incarcerated

in El Reno, Oklahoma. This Court is not the custodial court and does not have jurisdiction to

determine whether defendant’s claims are properly brought under § 2241 via the savings clause

of § 2255. See Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005) (“Only the custodial
Page 4 of 6

court has the jurisdiction to determine whether a petitioner’s claims are properly brought under

§ 2241 via the savings clause of § 2255.”); Hooker v. Sivley, 1876 F.3d 680, 682 (5th Cir. 1999).

The grounds asserted by defendant show the present action collaterally attacks his

sentence in the underlying criminal case 2:04-CR-0025. It is clearly established within the Fifth

Circuit that 28 U.S.C. § 2255 provides the primary means for collaterally attacking a federal

conviction and sentence. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001)(citing Tolliver v.

Dobre, 211 F.3d 876, 877 (5th Cir. 2000)).

As show below, construing this motion as brought under § 2255 does not afford plaintiff

any relief.

IV.

STATUTE OF LIMITATIONS

Title 28 U.S.C. § 2255 establishes a one-year limitation period for filing a motion to vacate

in federal court. That section provides:

(f) A 1-year period of limitation shall apply to a motion under this section. The

limitation period shall run from the latest of — 

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the United

States is removed, if the movant was prevented from making a motion by

such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme

Court, if that right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could

have been discovered through the exercise of due diligence.
Page 5 of 6

Defendant challenges his July 6, 2005 re-sentencing. In Clay v. United States, the Supreme

Court held that, for federal criminal defendants who do not file a petition for writ of certiorari, a

judgment becomes final, and the one-year period for limitations under the A.E.D.P.A. begins to run,

when the time for seeking such review expires. Clay v. United States, 537 U.S. 522, 532, 123 S.Ct.

1072, 155 L.Ed.2d 88 (2003); see also, United States v. Gamble, 208 F.3d 536 (5th Cir. 2000).

Supreme Court Rule 13 provides that, “[u]nless otherwise provided by law, a petition for a writ of

certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort

or a United States court of appeals . . . is timely when it is filed with the Clerk of [the] Court within

90 days after entry of judgment.” Supreme Court Rule 13.1.

Judgment on plaintiff’s appeal of his re-sentencing was entered April 19, 2006. The oneyear statute of limitations thus began to run on July 18, 2006, making defendant’s motion to vacate

due to be filed on or before July 18, 2007. As defendant did not file the instant motion to vacate

until September 13, 2010, the motion is untimely.

V.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United

States District Judge that the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

Sentence filed by defendant WARREN DOUGLASS COBLE, JR., be, in all things,

DISMISSED.
Page 6 of 6

VI.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file marked copy of this Report and

Recommendation to defendant and to each attorney of record by the most efficient means

available.

IT IS SO RECOMMENDED. 

ENTERED this 30th day of September, 2010.

_____________________________________

CLINTON E. AVERITTE

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is

fourteen (14) days from the date of filing as indicated by the “entered” date directly above the

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by

electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the

fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See

28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled “Objections to the Report

and Recommendation.” Objecting parties shall file the written objections with the United States

District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely

file written objections to the proposed findings, conclusions, and recommendation contained in this

report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the

unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the

Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services

Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988).