United States v. Combe, No. 12-4110

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtMary Beck Briscoe
PartiesUNITED STATES OF AMERICA, Plaintiff-Appellee, v. SCOTT KEVIN COMBE, Defendant-Appellant.
Docket NumberNo. 12-4110
Decision Date23 January 2013

SCOTT KEVIN COMBE, Defendant-Appellant.

No. 12-4110


FILED: January 23, 2013

(D.C. No. 1:04-CR-00051-TS-1)
(D. Utah)


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument.

Defendant Scott Combe appeals from the district court's order denying his pro se motion to alter or amend the terms of an amended judgment imposing a six-month

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revocation sentence and a related thirty-month term of supervised release. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.


In April 2004, a federal grand jury in the District of Utah returned a two-count indictment charging Combe with possession of firearms and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On August 4, 2004, Combe pleaded guilty to Count 1 of the indictment, which charged him with possession of firearms by a convicted felon. In doing so, Combe conceded, in part, that he had previously been convicted in the State of Idaho for lewd contact with a minor child under the age of sixteen. On November 4, 2004, Combe was sentenced to a term of imprisonment of thirty months, to be followed by a thirty-six month term of supervised release.

On January 26, 2007, just days short of the expiration of his term of imprisonment, an agent of the Federal Bureau of Prisons (BOP) certified Combe "as sexually dangerous, based upon the Idaho conviction, his psychological diagnosis of Pedophilia, Sexually Attracted to Males, and his risk assessment, which indicated that 'he will have serious difficulty refraining from sexually violent conduct or child molestation if released.'" United States v. Combe, 437 F. App'x 644, 645 (10th Cir. 2011). "This had the effect of automatically staying . . . Combe's release from custody, pursuant to 18 U.S.C. § 4248." Id. Combe thus remained in BOP custody. Id.

Combe filed two separate actions in the Eastern District of North Carolina, where he was housed by the BOP, seeking release from custody. First, Combe filed a motion to

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dismiss the certification petition, arguing that 18 U.S.C. § 4248 is unconstitutional. Combe's motion was ultimately unsuccessful. United States v. Broncheau, 759 F. Supp. 2d 682 (E.D.N.C. 2010), vacated, 645 F.3d 676, 686-88 (4th Cir. 2011). Second, Combe filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. That petition was also unsuccessful. See Combe, 437 F. App'x at 645.

In early 2010, Combe "wrote to the Office of Probation and Pretrial Services for the District of Utah, . . . asking whether his term of supervised released had started." Id. In April 2010, a probation officer responded and informed Combe that his term of supervised release had not yet commenced because he had not yet been released from imprisonment.

On August 25, 2010, Combe filed a motion with the sentencing court in the District of Utah asking for clarification of when his term of supervised release would start. The motion was ultimately dismissed by this court without prejudice as "premature, and not ripe for review." Id. at 647.


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