United States of America v. David Cobb, a/k/a SWEAT

BLD-036 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 24-2485
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UNITED STATES OF AMERICA
v.
DAVID COBB, a/k/a SWEAT,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Crim. Action No. 2:09-cr-00733-002)
District Judge: Honorable John F. Murphy
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Submitted for Possible Dismissal as Untimely and for Possible
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 21, 2024
Before: SHWARTZ, MATEY, and CHUNG, Circuit Judges
(Opinion filed: February 6, 2025)
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OPINION*
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PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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David Cobb, a federal prisoner proceeding pro se, appeals an order of the District
Court denying his motion for compassionate release from prison. For the reasons that
follow, we will affirm.
In 2010, Cobb was convicted of conspiracy to distribute cocaine and possession
with the intent to distribute cocaine. The District Court sentenced Cobb to 288 months in
prison. We affirmed the judgment on direct appeal. United States v. Cobb, 483 F. App’x
719, 721 (3d Cir. 2012) (non-precedential).
In February 2024, Cobb filed a motion for compassionate release pursuant to 18
U.S.C. § 3582(c)(1)(A)(i), which allows a court to reduce a sentence for “extraordinary
and compelling reasons.” Cobb relied on the following amendment to the Sentencing
Guidelines Policy Statement applicable to sentence reductions under § 3582(c)(1)(A)(i):
If a defendant received an unusually long sentence and has served at least
10 years of the term of imprisonment, a change in the law . . . may be
considered in determining whether the defendant presents an extraordinary
and compelling reason, but only where such change would produce a gross
disparity between the sentence being served and the sentence likely to be
imposed at the time the motion is filed, and after full consideration of the
defendant’s individualized circumstances.
U.S.S.G. § 1B1.13(b)(6) (effective Nov. 1, 2023).
The District Court ruled that this amendment did not override our precedent
holding that “[t]he duration of a lawfully imposed sentence does not create an
extraordinary or compelling circumstance.” United States v. Andrews, 12 F.4th 255,
260-61 (3d Cir. 2021). It thus held that the length of Cobb’s sentence did not warrant a
sentence reduction. The District Court also decided that there had been no change in law
impacting Cobb’s sentence, that his argument that there was a disparity between his

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sentence and the sentences of other defendants was not an adequate basis for relief, and
that his rehabilitation efforts could not alone support a reduction in his sentence. This
appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291.1 We review the District
Court’s decision for abuse of discretion. United States v. Rutherford, 120 F.4th 360, 369
n.13 (3d Cir. 2024). We may summarily affirm when an appeal does not raise a
substantial question. See 3d Cir. L.A.R. 27.4 and I.O.P 10.6.
To the extent Cobb argued that the length of his sentence and the amount of time
he has served constituted an extraordinary and compelling reason for his release, as the
District Court recognized, we held to the contrary in Andrews. In addition, the amended
Policy Statement applies when there has been a change in the law impacting a prisoner’s
sentence.2 Cobb argued below that he no longer qualified as a career offender because he
did not have “at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” See U.S.S.G. § 4B1.1(a). He asserted that the federal
Controlled Substances Act was amended in 2015 to exclude Ioflupane from the definition
of cocaine, and that, because the federal definition of cocaine was now narrower than the
1 The Government has not objected to the timeliness of Cobb’s appeal, and we will not
dismiss it as untimely. See United States v. Muhammud, 701 F.3d 109, 111 (3d Cir.
2012). Cobb’s motion to extend the time for filing his notice of appeal is dismissed.
2 We held in Rutherford that changes to 18 U.S.C. § 924(c) could not be considered in
determining compassionate release eligibility because Congress made those changes
nonretroactive. Rutherford, 120 F.4th at 376. We did not hold that a change in law could
never be considered. Id. at 377 & n.23.

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definition under Pennsylvania law, his prior Pennsylvania drug offense would not count
as a predicate offense under the categorical approach.3
We have held, however, that it is irrelevant whether Pennsylvania law defines
cocaine more broadly than federal law because, for purposes of the career offender
guideline, a controlled substance “‘is a drug regulated by either state or federal law.’”
United States v. Hurtt, 105 F.4th 520, 526 (3d Cir. 2024) (quoting United States v. Lewis,
58 F.4th 764, 771 (3d Cir. 2023) (emphasis added)). Cobb’s argument thus lacks merit.
Insofar as Cobb asserted that there is a disparity between his sentence and defendants
who are sentenced today, he did not show that a change in law impacts his sentence.
Cobb also argued that a disparity between his sentence and his co-defendant’s (his
brother’s) sentence warranted a reduction in his sentence. Like Cobb, his brother was
sentenced to 288 months in prison. His brother, however, was granted collateral relief
and resentenced to 180 months in prison in 2016. As Cobb acknowledges, his brother
was resentenced due to his counsel’s ineffective assistance. The District Court ruled that
counsel misadvised his brother as to his sentencing exposure, and that there was a
reasonable probability that his brother would have pleaded guilty had he known his true
exposure and would have received a lesser sentence. United States v. Cobb, 110 F. Supp.
3d 591, 598-601 (E.D. Pa. 2015). Cobb’s brother also was not a career offender. To the
extent a disparity based on the resentencing of a co-defendant may constitute an
3 Cobb’s motion for compassionate release did not clearly identify the basis of his
challenge to his career offender status. In his reply to the Government’s response, he
clarified his argument.

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extraordinary and compelling reason for compassionate release, Cobb has not shown that
he is similarly situated to his brother such that there is a sentencing disparity.4
Finally, we agree with the District Court that Cobb’s rehabilitation efforts cannot
alone establish an extraordinary and compelling reason for his release. See U.S.S.G.
§ 1B1.13(d).
Accordingly, we will summarily affirm the judgment of the District Court.
4 Cobb previously moved for a reduction of sentence under 18 U.S.C. § 3582(c)(2) based
on his brother’s resentencing. The District Court ruled that it lacked jurisdiction because
§ 3582(c)(2) only applies when a sentencing range has been lowered. The Court noted
that Cobb’s case did not involve ineffective assistance of counsel, which was the basis for
his brother’s resentencing. See DCT ECF 312.

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