United States v. Cole, 5:03-cr-40133

Defendant Lenard Tarkington pled guilty (Feb 5, 2007) to armed bank robbery, conspiracy to commit armed robbery, and using/brandishing a firearm in relation to a crime of violence.
The district court sentenced Tarkington to a total of 191 months’ imprisonment.
The Tenth Circuit enforced the appeal waiver in the plea agreement and dismissed Tarkington’s direct appeal.
Tarkington filed a pro se “Motion to Reduce Sentence” asserting that the Supreme Court’s decision in Dean v. United States (2017) entitles him to resentencing.
The Dean decision held that sentencing courts may consider a mandatory-minimum firearm sentence when calculating a just sentence for the predicate offense.
Because Tarkington sought relief that is typically raised under 28 U.S.C. § 2255, the district court warned it would treat his motion as a § 2255 motion unless he withdrew or amended it by a set deadline; the court provided a § 2255 form and explained the consequences of recharacterization.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant’s pro se motion should be recharacterized as a § 2255 motion	Government/ Court: implicit — recharacterization is appropriate when relief sought is collateral habeas relief	Tarkington: sought resentencing based on Dean (argues entitlement to relief)	Court gave notice it will treat the motion as a § 2255 petition unless defendant withdraws or amends by deadline
Whether Dean v. United States provides a basis for resentencing	N/A (government did not press merits here)	Tarkington: Dean’s holding retroactively entitles him to resentencing	Court did not reach merits; allowed opportunity to file proper § 2255 claims and warned about successive-motion consequences
Effect of recharacterization on future motions	N/A	Tarkington risks future § 2255 filings being treated as successive and requiring Tenth Circuit authorization	Court warned that subsequent § 2255 motions will be subject to second-or-successive restrictions
Procedural requirements if treated as § 2255	Court: defendant must include all § 2255 claims if amending	Tarkington must decide to withdraw or amend and include all claims	Court ordered defendant to withdraw or amend by deadline and provided § 2255 form

Dean v. United States, 137 S. Ct. 1170 (2017) (Supreme Court clarified that mandatory-minimum firearm sentences may be considered when imposing sentence for predicate offense)
Castro v. United States, 540 U.S. 375 (2003) (guidance on courts recharacterizing pro se filings as motions under § 2255 and requirement to notify the litigant)