United States v. Michael Norwood , 566 F. App'x 123 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-2836
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UNITED STATES OF AMERICA,
v.
MICHAEL NORWOOD,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. Action No. 1-96-cr-00232-001)
District Judge: Honorable Joseph E. Irenas
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Submitted Under Third Circuit LAR 34.1(a)
March 18, 2014
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Before: CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit Judges.
(Opinion Filed: May 13, 2014 )
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OPINION
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GREENAWAY, JR., Circuit Judge.
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Following a jury trial, Appellant Michael Norwood (“Norwood”) was convicted of
bank robbery, armed bank robbery, carjacking, two counts of use of a firearm in relation
to a crime of violence (one for robbery and another for carjacking), and possession of a
firearm by an armed career criminal. Norwood was initially sentenced in 1997 and was
resentenced in 1999, April 2013 and June 2013. Norwood appeals his most recent
resentencing on a variety of grounds.
For the reasons discussed below, we will affirm the judgment of conviction.
I. BACKGROUND
Because we write primarily for the parties who are familiar with the facts and
procedural history, we recount only the essential facts.
On April 12, 1996, Norwood entered the Amboy National Bank in Old Bridge,
New Jersey and walked out with over $15,000 that he had demanded from the bank
tellers, while brandishing a handgun. Shortly thereafter, Norwood approached a motorist,
demanded that he get out of his car at gunpoint, and drove away. Later, the motorist’s
vehicle was recovered, together with Norwood’s handgun. The following day the police
arrested Norwood and an accomplice.
While the procedural history is rather extensive, a truncated overview is
warranted. At Norwood’s first trial, Norwood waived his right to counsel and
represented himself. Assistant Federal Public Defender (“AFPD”) Lori Koch served as
standby counsel. A mistrial was declared when the jury was unable to reach a verdict.
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At the bifurcated retrial Norwood represented himself again. The jury found
Norwood guilty of bank robbery, armed bank robbery, carjacking and two counts of use
of a firearm in relation to a crime of violence (one for robbery and another for
carjacking). In the second half of the bifurcated trial, a jury found Norwood guilty of
possession of a firearm by an armed career criminal. Based on these convictions,
Norwood received an aggregate prison term of life plus 25 years.
After this Court rejected Norwood’s first appeal, United States v. Norwood, 142
F.3d 430 (3d Cir. 1998), Norwood filed a petition for collateral review pursuant to 28
U.S.C. § 2255. The District Court granted the petition as to a sentence miscalculation but
denied the other claims. At a resentencing hearing, Norwood raised six additional claims
and the District Court denied each of them. Norwood appealed both the partial denial of
his first § 2255 motion, docketed by this Court as No. 99-5510, and the denial of his six
additional claims, docketed by this Court as No. 99-5992. After consolidating the two
appeals, this Court concluded that it lacked jurisdiction to consider the claims in either
appeal and therefore dismissed both. Norwood v. United States, 229 F.3d 1138 (3d Cir.
2000).
In September 1999, the District Court granted Norwood’s pro se motion for the
appointment of new counsel, other than AFPD Koch, finding that an actual conflict
existed because Norwood filed a complaint against AFPD Koch with the New Jersey
Supreme Court’s Office of Attorney Ethics. (See Supp. App. 132-33.)
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In June 2006, Norwood filed a second § 2255 petition, which was also denied by
the District Court. Norwood did not appeal the District Court’s order.
Norwood’s third § 2255 petition, which was filed in December 2010 and claimed
for the first time that his sentences for bank robbery and armed bank robbery violated
double jeopardy, was denied by the District Court; however, this Court ultimately vacated
and remanded the District Court’s order because Norwood’s conviction for bank robbery
(Count One) and armed bank robbery (Count Two) did in fact violate the Double
Jeopardy clause. Norwood v. United States, 472 F. App’x 113 (3d Cir. 2012).
On remand, in April 2013, the District Court issued an amended judgment on
certain counts of the indictment without holding a formal resentencing hearing. On
appeal, the Government conceded that the District Court erred and that Norwood was
entitled to a de novo resentencing hearing.
Prior to this resentencing hearing, the District Court appointed AFPD Christopher
O’Malley to represent Norwood. Thereafter, Norwood moved to disqualify AFPD
O’Malley, arguing that his previous conflict with AFPD Koch should be imputed to the
entire Federal Public Defender’s Office. The District Court denied the motion. Norwood
then filed a motion to proceed pro se, which the District Court granted. In June 2013, the
District Court held the resentencing hearing (the “June 2013 Resentencing”) and
resentenced Norwood to an aggregate term of imprisonment of five hundred months.
Norwood now appeals the sentence, the denial of his motion to disqualify AFPD
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O’Malley, and the grant of his motion to proceed pro se.
II. JURISDICTION
The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has
jurisdiction over the challenge to the sentence under 18 U.S.C. § 3742(a) and 28 U.S.C. §
1291.
III. ANALYSIS
A. Waiver of the Right to Counsel
“Our review of whether a defendant’s waiver of counsel was knowing and
intelligent is plenary as it involves only legal issues.” United States v. Stubbs, 281 F.3d
109, 113 n.2 (3d Cir. 2002).
Before a criminal defendant can be permitted to proceed pro se, a court must make
certain that he is knowingly, voluntarily, and intelligently waiving his Sixth Amendment
right to counsel. See, e.g., Faretta v. California, 422 U.S. 806, 835 (1975); see also U.S.
Const. amend. VI. (“In all criminal prosecutions, the accused shall enjoy the right . . . to
have the Assistance of Counsel for his defence.”). Because of the singular import of the
right to counsel, we have instructed that “[c]ourts must indulge every reasonable
presumption against a waiver of counsel.” Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir.
2000). Accordingly, such a waiver “ought not [be] accept[ed] . . . absent a penetrating
and comprehensive examination of all the circumstances.” Stubbs, 281 F.3d at 118
(internal quotation marks omitted). It is clear that “the defendant [must] be informed of
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all risks and consequences associated with his decision for self-representation.” United
States v. Peppers, 302 F.3d 120, 135 (3d Cir. 2002) (emphasis omitted).
Norwood argues that—while he knowingly, voluntarily, and intelligently waived
his right to counsel after the District Court conducted a proper Faretta colloquy in
1997—Norwood revoked that waiver “when counsel was appointed for [Norwood’s] re-
sentencing on October 29, 1999, and revoked [it] again when counsel was appointed on
April 5, 2013.” (Appellant Br. 7-8.) According to Norwood, these revocations required
the District Court to conduct a new Faretta colloquy before allowing Norwood to
proceed pro se at the June 2013 Resentencing. (Id.) Having not conducted this colloquy,
Norwood argues that his waiver of the right to counsel was not knowingly, voluntarily or
intelligently made.
We disagree. Absent an express revocation of the criminal defendant’s waiver or
some other change in circumstances, a district court has no standing obligation to revisit
the waiver question and conduct another Faretta colloquy at a later stage in criminal
proceedings. Cf. United States v. McBride, 362 F.3d 360, 367 (6th Cir. 2004) (adopting
rule established by “[o]ther circuits[, which] have held that a valid waiver remains in
effect at subsequent proceedings in the absence of an explicit revocation by the defendant
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or a change of circumstances that would suggest that the district court should make a
renewed inquiry of the defendant”).1
On the record before us, there is nothing to suggest that Norwood explicitly
revoked his prior waiver of the right to counsel. There is also no evidence suggesting
that his waiver was anything other than knowing, voluntary and intelligent. Norwood’s
motion to proceed pro se clearly established his desire to exercise his right to self-
representation. Furthermore, having proceeded pro se for a number of years in this case,
Norwood has demonstrated a keen understanding of the implications and ramifications of
his decision to proceed pro se. (See Supp. App. 125 (stating that the “defendant has
proceeded pro se throughout the course of this case, including trial, sentencing, two direct
appeals, and several post-appeal applications” and “has a constitutional right to represent
himself at sentencing”).) The record does not reflect any change of heart on this issue.
Moreover, Norwood sets forth no evidence reflecting a change in circumstances
sufficient to have required a new inquiry into his decision to waive his right to counsel at
the June 2013 Resentencing. Thus, the District Court did not err.
1
See also United States v. Modena, 302 F.3d 626, 630-31 (6th Cir. 2002) (where criminal
defendant “gave the district court no reason to suspect that he was uncertain about
representing himself,” no new Faretta colloquy was required and his waiver was
knowing, intelligent and voluntary, even though “Modena had an interim change of heart
regarding his decision to proceed pro se”).
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B. Motion to Disqualify Counsel
“We review the district court’s order in two stages.” United States v. Stewart, 185
F.3d 112, 120 (3d Cir. 1999). “First, we exercise plenary review to determine whether
the district court’s disqualification [decision] was arbitrary—the product of a failure to
balance proper considerations of judicial administration against the right to counsel.” Id.
(internal quotation marks omitted). “If we find that the district court’s decision was not
arbitrary, we then determine whether the court abused its discretion.” Id.
Norwood argues that the District Court erred in failing to grant his motion to
disqualify his court-appointed counsel, AFPD O’Malley, pursuant to Rule 1.10(a) of the
New Jersey Rule of Professional Conduct (“RPC”). (Appellant Br. 8-9.) According to
Norwood, the District Court erred because Norwood had an actual conflict with AFPD
Koch, who had represented him previously in this case. (Id.) As such, Norwood argues
that all attorneys in the Office of the Federal Public Defender should have been
prohibited from representing him pursuant to Rule 1.10(a). (Id.)
The District Court did not err. RPC 1.10(a) states that “[w]hen lawyers are
associated in a firm, none of them shall knowingly represent a client when any one of
them practicing alone would be prohibited from doing so by RPC 1.7 or RPC 1.9, unless
the prohibition is based on a personal interest of the prohibited lawyer and does not
present a significant risk of materially limiting the representation of the client by the
remaining lawyers in the firm.” RPC 1.10(a) (emphasis added). As the District Court
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properly determined, even assuming that Norwood had an actual conflict of interest with
AFPD Koch, that conflict did not prevent AFPD O’Malley from subsequently
representing Norwood. The italicized language quoted above carves out an exception
where there exists no significant risk of material limits on client representation. (Supp.
App. 131-34.) Given Norwood’s failure to identify any risk associated with AFPD
O’Malley’s representation, his argument fails. The District Court’s decision was not
arbitrary, and it did not abuse its discretion in denying Norwood’s motion to disqualify
AFPD O’Malley.
C. District Court’s Sentencing Determinations
We have plenary review of a district court’s sentencing determination to the extent
that it involves the application of legal principles. See, e.g., Gov’t of the Virgin Islands v.
Martinez, 239 F.3d 293, 297 (3d Cir. 2001).
1. Application of the Guideline Manual In Effect on the Date of Sentencing
Norwood argues that the District Court should have used the Guidelines Manual in
effect on the date of his resentencing, namely, the 2012 Sentencing Guidelines Manual.
(Appellant Br. 9.) However, the language of 18 U.S.C. § 3742(g)(1) reflects that it was
proper for the District Court to use the 1995 Guidelines Manual, which was the manual
used at Norwood’s original sentencing. 18 U.S.C. § 3742(g)(1) (providing that a “district
court to which a case is remanded . . . shall apply the guidelines . . . that were in effect on
the date of the previous sentencing of the defendant prior to the appeal”). We therefore
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find that the District Court did not err in applying the 1995 Guidelines Manual when
determining Norwood’s sentence.
2. Violent Felony Convictions
The Armed Career Criminal Act (“ACCA”) 18 U.S.C. § 924(e), provides that:
In the case of a person who violates section 922(g) of this title and has
three previous convictions by any court referred to in section 922(g)(1)
of this title for a violent felony . . . committed on occasions different
from one another, such person shall be . . . imprisoned not less than
fifteen years . . . .
18 U.S.C. § 924(e)(1).
Norwood challenges the District Court’s application of the ACCA, contending that
his prior federal bank robbery conviction and his prior state conviction for attempted
aggravated assault on a police officer were part of a single criminal episode and must be
treated as one conviction. (Appellant Br. 10.)
This contention is in error. In United States v. Schoolcraft, 879 F.2d 64 (3d Cir.
1989) (per curiam), we adopted the “separate episodes” test for purposes of enhanced
sentencing under the ACCA:
The issue of enhanced sentencing under the ACCA has frequently arisen in
cases where the defendant received multiple convictions in a single judicial
proceeding. In each of these cases, courts have held that the individual
convictions may be counted for purposes of sentencing enhancement so
long as the criminal episodes underlying the convictions were distinct in
time . . . In each case, the “separate episode test” was adopted. Recently,
the Second Circuit stated that “it is fairly well-established in other circuits
that § 924(e)(1)'s reference to ‘convictions’ pertains to single ‘episodes’ of
felonious criminal activity that are distinct in time . . . .”
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Id. at 73 (citing United States v. Towne, 870 F.2d 880, 889 (2d Cir. 1989). In
Schoolcraft, we did not describe in detail the criteria that should be used to determine
what constitutes a “separate” episode for purposes of the ACCA. However, several
circuits have explained that even brief differences in time between crimes suffice to
constitute separate episodes. For example, the Seventh Circuit stated that “it is necessary
to look to the nature of the crimes, the identities of the victims, and the locations.”
United States v. Cardenas, 217 F.3d 491, 492 (7th Cir. 2000). Additionally, “we must
ask whether the defendant had sufficient time to cease and desist or withdraw from the
criminal activity.” Id.
In the instant case, the separate episode test makes it clear that the bank robbery
and attempted aggravated assault were two distinct crimes. The two crimes were
committed in different states and against different victims. Norwood had opportunities to
cease and desist from further criminal activity. Therefore, each crime must be seen as a
separate and distinct criminal episode. The multiple crimes do not constitute a single
criminal episode, as Norwood contends. Therefore, the District Court properly concluded
that they constituted separate offenses for purposes of § 924(e).
Norwood also argues that the District Court “found facts that he had three prior
convictions” for violent felonies that occurred on occasions different from one another
and thereby violated his “Sixth Amendment jury-trial right.” (Appellant Br. 11.) This
argument is also without merit. As this Court stated in United States v. Blair, 734 F.3d
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218, 227-28 (3d Cir. 2013), a District Court is permitted to take judicial notice of “details
related to prior convictions” without fact-finding by a jury. The District Court’s findings
were therefore proper.
3. Restitution
Norwood argues that the District Court abused its discretion in failing to make
specific factual findings regarding his ability to pay restitution. While it is true that this
Court has held that such findings are required where there is a dispute over restitution,
see United States v. Pollak, 844 F.2d 145, 155-56 (3d Cir. 1988), we explained in United
States v. Kendis, 883 F.2d 209, 211 (3d Cir. 1989) that such specific findings relating to a
defendant’s ability to pay restitution are not required when there is no dispute regarding a
defendant’s ability to make restitution. Since there was no dispute about Norwood’s
ability to pay either prior to or at any of Norwood’s sentencing hearings, the District
Court did not abuse its discretion.
4. Consecutive Sentences
The District Court sentenced Norwood to a mandatory five-year consecutive
sentence on Count Three (use of a firearm in relation to armed bank robbery) and a
mandatory twenty-year consecutive sentence on Count Five (use of a firearm in relation
to carjacking). (See Supp. App. 22.) In so doing, the District Court relied upon the text
of the federal statute. See 18 U.S.C. § 924(c)(1) (“Whoever, during and in relation to any
crime of violence . . . uses or carries a firearm, shall, in addition to the punishment
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provided for such crime of violence . . . be sentenced to imprisonment for five years . . .
In the case of his second or subsequent conviction under this subsection, such person
shall be sentenced to imprisonment for twenty years . . . .”). It also relied upon
Deal v. United States, 508 U.S. 129 (1993), which held that an enhanced penalty can be
imposed even where the “second or subsequent conviction” results from the same multi-
count indictment as the first conviction—as was the case here—rather than from a
conviction occurring after the first conviction is final. Norwood’s argument, that
evolving standards of decency require that Deal be abrogated, is without merit.
IV. CONCLUSION
For the foregoing reasons, we will affirm the judgment of conviction.
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