United States v. Thomas Norman ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4154
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS EDWARD NORMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:17-cr-00527-HMH-1)
Submitted: April 4, 2023 Decided: May 15, 2023
Before KING and THACKER, Circuit Judges, and MOTZ, Senior Circuit Judge.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
ON BRIEF: Janis Richardson Hall, Greenville, South Carolina, for Appellant. Arthur
Bradley Parham, Assistant United States Attorney, Florence, South Carolina, Kathleen
Michelle Stoughton, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In March 2020, Thomas Edward Norman filed a 28 U.S.C. § 2255 motion to vacate
his drug and firearm convictions and sentence. The district court granted the § 2255 motion
in part, agreeing that Norman’s counsel rendered ineffective assistance in failing to object
to the application of a sentencing enhancement, and ordered that he be resentenced without
the inapplicable enhancement. The court denied the § 2255 motion as to all other claims.
The court thereafter resentenced Norman to an aggregate term of 90 months’
imprisonment. Norman appeals the denial of the remainder of his § 2255 motion and the
sentence imposed on resentencing.
Norman’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), asserting that there are no meritorious issues for appeal but questioning whether
the district court imposed an unreasonable sentence. Norman has filed a pro se
supplemental brief challenging the district court’s denial of several of the claims he raised
in his § 2255 motion and asserting that his counsel rendered ineffective assistance at
resentencing. The Government has declined to file a response brief.
To begin, an amended judgment entered as a result of a § 2255 resentencing “is a
hybrid order that is both part of the petitioner’s § 2255 proceeding and part of his criminal
case.” United States v. Hadden, 475 F.3d 652, 664 (4th Cir. 2007). To the extent Norman
seeks to appeal the order by assigning error to the district court’s denial of relief on some
of the claims in his § 2255 motion, “he is appealing ‘the final order in a proceeding under
§ 2255’ and must obtain a [certificate of appealability] under § 2253.” Id. (quoting 28
U.S.C. § 2253(c)(1)(B)). On the other hand, to the extent Norman seeks to challenge the
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propriety of the relief granted—for instance, whether the relief was proper under § 2255 or
whether the new sentence contravenes the Sentencing Guidelines—“he is appealing a new
criminal sentence” and, accordingly, need not first secure a certificate of appealability. Id.
For the reasons discussed below, we deny a certificate of appealability and dismiss the
portion of Norman’s appeal challenging the district court’s order denying in part his § 2255
motion, and we affirm the amended criminal judgment.
We first consider Norman’s appeal of the district court’s earlier order denying relief
on all but one of the claims asserted in Norman’s § 2255 motion. This order is not
appealable unless a circuit justice or judge issues a certificate of appealability. See 28
U.S.C. § 2253(c)(1)(B). A certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district
court denies relief on the merits, a prisoner satisfies this standard by demonstrating that
reasonable jurists could find the district court’s assessment of the constitutional claims
debatable or wrong. See Buck v. Davis, 590 U.S. 100, 115-17 (2017). When the district
court denies relief on procedural grounds, the prisoner must demonstrate both that the
dispositive procedural ruling is debatable and that the motion states a debatable claim of
the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Norman has not
made the requisite showing. Accordingly, we deny a certificate of appealability and
dismiss this appeal as to the district court’s July 17, 2020, order denying in part Norman’s
§ 2255 motion.
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We turn, then, to Norman’s appeal of the amended criminal judgment, which was
imposed after the district court resentenced Norman pursuant to the prior grant of partial
§ 2255 relief. We review “the reasonableness of a sentence under 18 U.S.C. § 3553(a)
using an abuse-of-discretion standard.” United States v. Nance, 957 F.3d 204, 212
(4th Cir. 2020). We must first “evaluate procedural reasonableness, determining whether
the district court committed any procedural error, such as improperly calculating the
Guidelines range, failing to consider the § 3553(a) factors, or failing to adequately explain
the chosen sentence.” Id. (citing Gall v. United States, 552 U.S. 38, 51 (2007)). “If the
sentence is procedurally sound, we then consider the substantive reasonableness of the
sentence, taking into account ‘the totality of the circumstances.’” United States v. McCain,
974 F.3d 506, 515 (4th Cir. 2020) (quoting Gall, 552 U.S. at 51). “Any sentence that is
within or below a properly calculated Guidelines range is presumptively [substantively]
reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014) (citing United
States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008)). “Such a presumption can only be
rebutted by showing that the sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors.” Id.During the resentencing hearing, the district court accurately calculated Norman’s
advisory Guidelines range, considered the parties’ arguments and the § 3553(a) factors,
and adequately explained the chosen sentence. Accordingly, Norman’s sentence is
procedurally reasonable. We further conclude that Norman has failed to rebut the
presumption that his within-Guidelines sentence is substantively reasonable.
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Finally, Norman claims that his counsel rendered ineffective assistance at the
resentencing hearing. We do not consider ineffective assistance of counsel claims on direct
appeal “[u]nless an attorney’s ineffectiveness conclusively appears on the face of the
record.” United States v. Faulls, 821 F.3d 502, 507 (4th Cir. 2016) (citing United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008)). The present record does not conclusively show
that counsel’s performance was ineffective. Accordingly, Norman’s claim is not
cognizable on direct appeal.
In accordance with Anders, we have reviewed the entire record and have found no
other meritorious grounds for appeal. We therefore deny a certificate of appealability and
dismiss Norman’s appeal of the district court’s order denying in part his § 2255 motion,
and we affirm the amended criminal judgment. This court requires that counsel inform her
client, in writing, of his right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy thereof was served on the
client. We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED IN PART
AND AFFIRMED IN PART
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