United States v. Norwood ( 2023 )


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  • Appellate Case: 22-6104     Document: 010110811249   Date Filed: 02/10/2023   Page: 1
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS         Tenth Circuit
    FOR THE TENTH CIRCUIT                    February 10, 2023
    _________________________________
    Christopher M. Wolpert
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                    No. 22-6104
    (D.C. No. 5:06-CR-00180-F-1)
    MICHAEL DWIGHT NORWOOD,                               (W.D. Okla.)
    Defendant - Appellant.
    _________________________________
    ORDER AND JUDGMENT *
    _________________________________
    Before PHILLIPS, MURPHY, and EID, Circuit Judges.
    _________________________________
    Michael Norwood appeals the district court’s denial of his motion for
    sentence reduction and compassionate release under 
    18 U.S.C. § 3582
    (c)(1)(A)(i). Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we affirm.
    BACKGROUND
    In 2006, Norwood pleaded guilty without a plea agreement to Counts 1
    and 2 for distributing methamphetamine, in violation of 
    21 U.S.C. § 841
    (a)(1),
    *
    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 ordered submitted without oral argument. This order and
    judgment is not binding precedent, except under the doctrines of law of the
    case, res judicata, and collateral estoppel. It may be cited, however, for its
    persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    Appellate Case: 22-6104   Document: 010110811249     Date Filed: 02/10/2023    Page: 2
    (b)(1)(C); Count 3 for distributing methamphetamine, in violation of
    § 841(a)(1), (b)(1)(B); and Count 4 for possessing a firearm as a felon, in
    violation of 
    18 U.S.C. § 922
    (g)(1). Before his sentencing, the government filed
    an information under 
    21 U.S.C. § 851
     containing notice of a prior conviction
    for a serious drug felony.
    With this § 851 enhancement, the penalty for Counts 1 and 2 increased to
    a thirty-year maximum sentence, and the penalty for Count 3 increased to a
    prison term of ten years to life imprisonment. § 841. Norwood’s sentencing
    guideline range was 360 months to life imprisonment. For the counts now at
    issue, the court sentenced Norwood to sentences within his advisory guideline
    ranges: terms of 360 months’ imprisonment each on Counts 1 and 2, and life
    imprisonment on Count 3.
    In February 2022, Norwood filed what amounts to his tenth motion for a
    sentence reduction or compassionate release. Under 
    18 U.S.C. § 3582
    (c)(1)(A)(i), he asked the district court to reduce his drug sentences to
    92 months’ imprisonment. He relied on four grounds to show the required
    extraordinary and compelling circumstances: (1) that if he “was sentenced after
    the passage of the First Step Act, the government would not seek an enhanced
    penalty under 
    21 U.S.C. § 851
    ,” R. vol. 5, at 204; (2) that his prior state drug
    convictions would not have qualified as serious drug felonies under the First
    Step Act; (3) the government had simply charged the statutory drug weights,
    which is improper under the Fair Sentencing Act; and (4) that he would have
    2
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    been eligible for a two-level base-offense reduction under U.S.S.G. Amendment
    782. As § 3553(a) factors weighing against continued detention, he directed the
    court to “the length [of his] imprisonment, his personal rehabilitation, and
    deeply felt remorse.” Id. at 213.
    The district court concluded that Norwood had “failed to demonstrate
    extraordinary and compelling reasons for compassionate release” and that his
    personal-rehabilitation efforts while incarcerated were “not unique.” Id. at 250.
    The court also concluded that the § 3553(a) factors weighed against Norwood’s
    release. Reiterating that Norwood’s drug-distribution crimes had “ruined
    countless lives and families” in southwest Oklahoma, the court found that
    Norwood had given the court “no reason to have any confidence that [he] would
    be unwilling to return to selling poison in the community.” Id. at 251. The
    court denied Norwood’s motion. Norwood appeals this denial.
    STANDARD OF REVIEW
    We review a district court’s denial of a compassionate-release motion for
    abuse of discretion. 1 United States v. Hemmelgarn, 
    15 F.4th 1027
    , 1031 (10th
    Cir. 2021) (citation omitted). “A district court abuses its discretion when it
    relies on an incorrect conclusion of law or a clearly erroneous finding of fact.”
    United States v. Piper, 
    839 F.3d 1261
    , 1265 (10th Cir. 2016) (citation omitted).
    1
    Norwood argued in his opening brief that we should review de novo.
    Because he conceded in his reply brief that the proper standard of review on
    appeal is abuse of discretion, further discussion on the appropriate standard of
    review is unnecessary.
    3
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    Because Norwood is proceeding pro se, we liberally construe his filings, but we
    will not act as his advocate. United States v. Griffith, 
    928 F.3d 855
    , 864 n.1
    (10th Cir. 2019) (citation omitted).
    DISCUSSION
    Norwood argues that his “§ 851 enhancements” are now improper given
    the First Step Act. So Norwood apparently contests the continued viability of
    his life sentence on Count 3 under 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(B), 851(a).
    But the First Step Act does not provide Norwood retroactive relief. United
    States v. McGee, 
    992 F.3d 1035
    , 1039 (10th Cir. 2021).
    Norwood next argues that he should benefit from the Fair Sentencing
    Act. But the Fair Sentencing Act applies only to crack-cocaine offenses. Fair
    Sentencing Act of 2010, 
    Pub. L. No. 111-220, §§ 2
    (a), 3, 
    124 Stat. 2372
    , 2372
    (2010) (codified as amended at 
    21 U.S.C. §§ 841
    (b)(1)(A)(iii), (b)(1)(B)(iii),
    844(a)). Norwood pleaded guilty to three counts of distributing
    methamphetamine, so the Fair Sentencing Act does not apply to his motion for
    a sentence reduction. See United States v. Brown, 
    791 F. App’x 785
    , 788 (11th
    Cir. 2019) (per curiam) (unpublished).
    Norwood also states that he should qualify for a sentence reduction under
    U.S.S.G. Amendment 782. We have already stated that Amendment 782 does
    not apply to Norwood’s sentence, so “he does not have an available claim under
    4
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    § 3582(c)(2).” United States v. Norwood, 
    624 F. App’x 669
    , 670 (10th Cir.
    2015). We will not entertain this issue for a second time.
    Finally, Norwood asks us to consider the § 3553(a) factors, which the
    district court found weighed against Norwood’s release. But the district court
    was not required to consider these factors, because it found Norwood had not
    shown extraordinary and compelling circumstances. Hemmelgarn, 15 F.4th at
    1029 (citation omitted). Norwood has not shown the district court’s factual
    findings on the § 3553(a) factors were clearly erroneous, and we will not
    reweigh the factors. See United States v. Williams, 
    848 F. App’x 810
    , 813 (10th
    Cir. 2021).
    CONCLUSION
    For these reasons, we affirm the district court’s denial of Norwood’s
    motion for sentence reduction and compassionate release under 
    18 U.S.C. § 3582
    (c)(1)(A)(i).
    Entered for the Court
    Gregory A. Phillips
    Circuit Judge
    5
    

Document Info

Docket Number: 22-6104

Filed Date: 2/10/2023

Precedential Status: Non-Precedential

Modified Date: 2/10/2023