United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
matter is before the Court on the Recommended Disposition
filed by Magistrate Judge Edward B. Atkins. [R. 344.] The
Defendant, Gary Cooper has filed a pro se motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. [R. 335.] Consistent with local practice,
Judge Atkins reviewed the motion and ultimately recommends
that the Court deny Defendant Cooper's motion in its
Federal Rule of Civil Procedure 72(b)(2), a petitioner has
fourteen days after service to register any objections to the
Recommended Disposition or else waive his rights to appeal.
In order to receive de novo review by this Court,
any objection to the recommended disposition must be
specific. Mira v. Marshall, 806 F.2d 636, 637 (6th
Cir. 1986). A specific objection must “explain and cite
specific portions of the report which [defendant] deem[s]
problematic.” Robert v. Tesson, 507 F.3d 981,
994 (6th Cir. 2007) (internal quotations and citations
omitted). A general objection that fails to identify specific
factual or legal issues from the recommendation, however, is
not permitted, since it duplicates the Magistrate's
efforts and wastes judicial economy. Howard v. Sec'y
of Health & Human Servs., 932 F.2d 505, 509 (6th
Cooper filed timely objections on December 9, 2016. [R. 346.]
The Court acknowledges its duty to review Mr. Cooper's
filings under a more lenient standard than the one applied to
attorneys because Mr. Cooper is proceeding pro se.
See Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir.
1985). Under this more lenient standard, Mr. Cooper's
objections are sufficiently definite to trigger the
Court's obligation to conduct a de novo review.
See 28 U.S.C. § 636(b)(1)(c). The Court has
satisfied that duty, reviewing the entire record, including
the pleadings, the parties' arguments, relevant case law
and statutory authority, as well as applicable procedural
rules. For the following reasons, Mr. Cooper's objections
will be OVERRULED.
Atkins's Recommended Disposition accurately sets forth
the factual and procedural background of the case. The Court
mentions only key facts to frame its discussion and analysis
and incorporates Judge Atkins's discussion of the record
in this Order.
of 2013, Mr. Gary Cooper was indicted for conspiracy to
distribute oxycodone and several counts of distribution of
pills containing oxycodone. [R. 56.] Six months later, Mr.
Cooper entered a guilty plea to the conspiracy charge, and
the Government agreed to dismiss the counts of distribution.
[R. 190; R. 193.] On July 17, 2014, he was sentenced to 168
months of imprisonment, which he did not appeal. [R. 283.] In
February, he filed a motion to reduce his sentence pursuant
to United States Sentencing Guidelines Amendment 782 [R.
327], which the Court granted and reduced his sentence to 134
months imprisonment [R. 333].
Cooper filed a motion for § 2255 relief on October 27,
2016. [R. 335.] However, as Judge Atkins notes, this motion
is actually a second motion to reduce his sentence pursuant
to 18 U.S.C. § 3582(c)(2). Mr. Cooper is, in fact,
requesting a reduction of his sentence pursuant to U.S.S.G.
Amendment 794. He claims the Court should have considered a
minor role reduction pursuant to Amendment 794 at sentencing.
Amendment 794 became effective on November 1, 2015, but it is
not listed in U.S.S.G. § 1B1.10(b)(1) as an amendment
that can be retroactively applied at resentencing. Only
amendments listed in § 1B1.10(b)(1) can be applied in a
§ 3582(c)(2) proceeding. United States v.
Goodloe, 388 Fed.Appx. 500, 506 (6th Cir. 2010). Judge
Atkins, therefore, found that § 3582(c)(2) provides him
objections, Mr. Cooper contends that 28 U.S.C. § 2255 is
the proper vehicle for his claim, and that Judge Atkins was
wrong to recharacterize it as a motion under § 3582.
However, a petition under § 2255 provides Mr. Cooper no
avenue to challenge his sentence in this manner. The Court
can vacate a sentence pursuant to § 2255 if that
sentence was in violation of the Constitution or federal law,
if the Court had no jurisdiction to impose the sentence, or
if the sentence exceeded the maximum penalty authorized by
law. Only 18 U.S.C. § 3582(c)(2) allows for relief after
a subsequent reduction in the United States Sentencing
Guidelines. Accordingly, Mr. Cooper's objections must be
reviewing de novo the entire record, as well as the
relevant case law and statutory authority, the Court agrees
with Judge Atkins's thorough analysis of Mr. Gary
Cooper's claims. Accordingly, and the Court being
otherwise sufficiently advised, it is hereby
ORDERED as follows:
1. Defendant/Movant Gary Cooper's Motion to Vacate under
§ 2255 [R. 335] is
CONSTRUED as a Motion for Resentencing under
2. Defendant Gary Cooper's Objections to the Recommended
Disposition [R. 346] ...