United States v. Joseph Newbold , 686 F. App'x 181 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16–4013
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH K. NEWBOLD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, District Judge. (1:05-cr-00262-TDS-1)
Argued: January 24, 2017 Decided: April 25, 2017
Before GREGORY, Chief Judge, KING, Circuit Judge, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished opinion. Chief Judge Gregory wrote the opinion, in which
Judge King and Senior Judge Davis joined.
ARGUED: Matthew Cloutier, James Lathrop, WAKE FOREST UNIVERSITY
SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Randall Stuart
Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. ON BRIEF: John J. Korzen, Director, Kaitlin M. Price, Third-
Year Law Student, Mackenzie M. Salenger, Third-Year Law Student, Appellate
Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem,
North Carolina, for Appellant. Ripley Rand, United States Attorney, Elissa Hachmeister,
Third-Year Law Student, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Chief Judge:
In September 2005, Joseph Newbold pleaded guilty to one count of dealing a
controlled substance analogue. After a series of post-conviction proceedings, he received
a resentencing hearing and new sentence on December 14, 2015.
Newbold now appeals the sentence he received. He contends that his sentence is
substantively unreasonable, and that the sentencing court failed to take into consideration
his post-conviction conduct and medical needs. He also contends for the first time on
appeal that his conviction should be vacated because, based on an intervening Supreme
Court case, United States v. McFadden, 135 S. Ct. 2298 (2015), the indictment, plea
colloquy, and factual basis for the plea agreement failed to establish that he satisfied the
knowledge element of the crime.
For the reasons below, we affirm Newbold’s conviction and sentence.
I.
In July 2005, Newbold was indicted for, among other crimes, one count of
distributing a controlled substance analogue. He pleaded guilty in September 2005 to the
distribution charge, as well as money laundering and being a felon in possession of a
firearm. At Newbold’s plea colloquy, the district judge asked Newbold if he understood
that the government had to prove the following: that Newbold “willfully, knowingly, and
intentionally distributed 5.3 grams of a mixture containing a detectable amount of 5-
MeO-AMT, which is a controlled substance, and with the intent for human consumption;
and that [he] knew that what [he] w[as] distributing was some kind of controlled
3
substance.” J.A. 53. The prosecutor then clarified, and the judge accepted, that 5-MeO-
AMT was a controlled substance analogue. Newbold then stipulated that there were
enough facts for the court to determine that he fulfilled each of the crime’s elements.
J.A. 60. The district judge also read aloud the plea agreement’s written factual basis,
which stated that Newbold sold “fifty gel capsules containing a substance represented to
be like ‘Ecstasy.’” J.A. 32.
Under then-binding precedent, United States v. Harp, 406 F.3d 242 (4th Cir.
2005), Newbold qualified for a sentencing enhancement on his firearm-possession charge
under the Armed Career Criminal Act, and was sentenced to 225 months. He
unsuccessfully appealed his sentence and then challenged his sentencing enhancement in
protracted habeas proceedings. During the course of Newbold’s proceedings, we
overruled Harp in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). In
March 2015, applying Simmons retroactively, see Miller v. United States, 735 F.3d 141
(4th Cir. 2013), we held that Newbold did not qualify for the armed-career-criminal
sentencing enhancement, and we remanded his case for resentencing.
In June 2015, the Supreme Court issued McFadden, which clarified the knowledge
element for the crime of distributing a controlled substance analogue. At the time of
Newbold’s conviction, the government could satisfy this element by showing only that
Newbold intended for the substance to be consumed by humans. United States v.
Klecker, 348 F.3d 69, 71 (4th Cir. 2003). The McFadden Court, however, rejected that
standard. It held that, to convict someone of dealing a controlled substance analogue, the
government must also show that “the defendant knew that the substance was controlled
4
under the [Controlled Substances Act] or the Analogue Act, even if he did not know its
identity.” 135 S. Ct. at 2302.
Newbold’s resentencing hearing occurred on December 14, 2015. The parties
agreed that the proper Sentencing Guidelines range was 151 to 188 months. Newbold
neither challenged his underlying conviction nor raised McFadden at his hearing.
Instead, he requested only a downward variance to 143 months because of his chronic
Hepatitis C and his post-conviction conduct. His statement included attachments from
his physician indicating that he was nonresponsive to the treatment he received,
Newbold’s request for a different treatment that he believed would be more effective, the
prison’s denial of his request, a certificate from the prison’s law library for his work, and
Newbold’s request that the judge increase his time at a Residential Recovery Center so he
could receive medical treatment more quickly.
In support of his request for a downward variance, Newbold also emphasized his
exemplary behavior while incarcerated. During the 10.5 years of his incarceration, he
worked in the law library for seven years, receiving a commendation; had not failed a
single alcohol or drug test; attended church, Bible, and music groups; played piano for
eight years; was approved for minimum security; and had a stable home environment,
including a wife, mother, and adult son to return to. The prosecutor, on the other hand,
emphasized an infraction Newbold had received while incarcerated and the fact that
Newbold’s current offense was his seventeenth drug conviction.
The judge ultimately denied the request for a downward variance and sentenced
Newbold to 165 months, the middle of the applicable range. The judge considered
5
Newbold’s Hepatitis C, including its severity, Newbold’s ability to receive his requested
medication, and whether Newbold had exhausted the internal appeals process for
requesting the medication. The judge also emphasized the seriousness of Newbold’s
crimes and criminal history, and noted that he wanted the sentence to reflect the offense’s
seriousness, promote respect for the law, and protect the public from potential future drug
offenses. The judge stated the following:
[W]hy would somebody with your talents and abilities have
even done this in the first place, and what have you learned,
and why won’t you do it again? I still have some concern
about that, and I hope that your sentence . . . has caused you
to appreciate the need to protect the public from polluting
other people with these drugs that you are or were
distributing.
J.A. 141. And lastly, the judge concluded, “I appreciate the problem with your Hepatitis
C, and I hope that it holds off long enough so that when you are released, you can get
whatever treatment you wish to get.” J.A. 146.
Newbold timely appeals his sentence and challenges his underlying conviction for
the first time on appeal.
II.
We first examine Newbold’s challenge to his conviction, and then turn to his
sentencing appeal.
A.
Relying on McFadden, Newbold argues that the indictment, plea colloquy, and
factual basis for his plea agreement fail to show that he had sufficient knowledge of the
6
elements of his crime to be convicted for dealing a controlled substance analogue. We
first examine whether we are procedurally barred from reviewing Newbold’s claims.
Finding no such barrier, we next determine whether the plea colloquy or factual basis for
his plea agreement demonstrate sufficient knowledge to support his guilty plea. Under
plain-error review, we hold Newbold’s guilty plea, as informed by the plea colloquy, was
knowing and intelligent, and therefore valid. Because his guilty plea was valid, we are
procedurally barred from examining the indictment.
1.
The government highlights two procedural barriers that we review in turn: law-of-
the-case doctrine and waiver.
Law-of-the-case doctrine ensures that “when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages in the same
case.” United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (quoting
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16 (1988)). As a result,
once an appellate court establishes a decision of law either explicitly or implicitly, see
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993), the decision “must be followed in all
subsequent proceedings in the same case in the trial court or on a later appeal,” Aramony,
166 F.3d at 661 (quoting Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir.
1988)). Here, law-of-the-case doctrine does not bar Newbold’s challenge to his
conviction because no prior appellate decision implicitly or explicitly resolved the issue.
When Newbold appealed his sentence in 2007, he challenged the sentencing
enhancements he received as a career offender and armed career criminal, and he argued
7
that his sentence violated his confrontation and jury-trial rights. United States v.
Newbold, 215 F. App’x. 289, 291 (4th Cir. Jan. 31, 2007) (unpublished). We affirmed
his sentence on all counts. In his subsequent habeas petition, Newbold argued, among
other claims, that the indictment failed to allege a proper offense “because it did not state
what Schedule I substance 5-MeO-AMT is associated with as an analogue.” Newbold v.
United States, 2009 WL 2243642, at *11 (M.D.N.C. July 27, 2009) (unpublished). The
district court decided that this claim failed. Id. We then granted a certificate of
appealability on only Newbold’s challenge to his sentencing enhancement, which we
affirmed. And the Supreme Court vacated that decision and remanded the case to us in
light of then-recent circuit precedent, i.e., Simmons and Miller. Newbold v. United States,
134 S. Ct. 897 (Jan. 13, 2014) (mem.). In sum, no appellate court has decided whether,
under McFadden or Klecker, Newbold’s indictment, plea colloquy, or factual basis for
his plea agreement established that he had sufficient knowledge of the elements of his
crime. Thus, no prior decision of law now binds our examination of this question. *
We next turn to waiver. We are barred from reviewing waived claims, but we
may review forfeited claims. “[F]orfeiture is the failure to make the timely assertion of a
right, [while] waiver is the ‘intentional relinquishment or abandonment of a known
right.’” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst,
*
Even if a prior appellate decision had found that Newbold demonstrated
sufficient knowledge under Klecker, law-of-the-case doctrine does not apply when
controlling authority has changed on a decision of law applicable to the issue. TFWS,
Inc. v. Franchot, 572 F.3d 186, 191 (4th Cir. 2009). As a result, Newbold’s claim likely
still would not have been barred.
8
304 U.S. 458, 464 (1938)). Although the term “waiver” is often used broadly, it applies
only in a narrow set of instances: when a party “identifies an issue, and then explicitly
withdraws it.” United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014).
Here, Newbold neither challenged his underlying conviction at his resentencing
hearing nor brought McFadden to the sentencing court’s attention. He did not waive his
claim; he forfeited it by failing to raise it in a timely manner. Thus, we may review his
challenge for plain error. See Olano, 507 U.S. 733–34.
2.
Before turning to the substance of Newbold’s claim, we briefly address
retroactivity. As a new rule of statutory interpretation, McFadden applies to Newbold’s
case because “a new rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct review or not yet final.”
Griffith v. Kentucky, 479 U.S. 314, 328 (1987). A case is final only when “a judgment of
conviction has been rendered, the availability of appeal exhausted, and the time for a
petition for certiorari elapsed or a petition for certiorari finally denied.” Id. at 321 n.6.
“[A] final judgment of conviction includes both the adjudication of guilt (or ‘conviction’)
and the sentence.” In re Gray, 850 F.3d 139, 141 (4th Cir. 2017). Here, Newbold’s
sentence is not yet final, as his direct appeal from his sentence is before us. As a result,
his judgment is not final, and McFadden is retroactively applicable to his case.
We now consider whether Newbold’s guilty plea and plea colloquy demonstrated
sufficient knowledge of the elements of the crime. Under plain-error review, Newbold
must establish that (1) an error occurred, (2) the error is plain, and (3) the error affected
9
his substantial rights. Olano, 507 U.S. at 732. And even if Newbold satisfies these three
requirements, the Court should correct the error only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings. Id. (quoting United States v.
Young, 470 U.S. 1, 15 (1985)).
A guilty plea is constitutionally valid “only to the extent it is ‘voluntary’ and
‘intelligent.’” Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady v.
United States, 397 U.S. 742, 748 (1970). The defendant making the plea must have
“sufficient awareness of the relevant circumstances and likely consequences.” United
States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010) (quoting Bradshaw v. Stumpf, 545
U.S. 175, 183 (2005)). To intelligently make a guilty plea, the defendant must be advised
by competent counsel, aware of the nature of the charge against him, and in control of his
mental faculties. Brady v. United States, 397 U.S. 742, 756 (1970).
In McFadden, the Supreme Court held that when a defendant is charged with
dealing a controlled substance analogue, the government must show that “the defendant
knew that the substance was controlled under the [Controlled Substances Act] or the
Analogue Act, even if he did not know its identity.” McFadden, 135 S. Ct. at 2302. The
Court noted two ways by which the government can satisfy this knowledge element: (1)
evidence that a defendant knew the substance he was dealing was or was treated like a
controlled substance; or (2) evidence that the defendant knew the substance had a
chemical structure similar to a controlled substance, and either (a) had a stimulant,
depressant, or hallucinogenic effect on the central nervous system similar to a controlled
10
substance, or (b) was represented or intended to have such an effect on a person. Id. at
2305.
Here, the factual basis for Newbold’s plea states that he sold “fifty gel capsules
containing a substance represented to be like ‘Ecstasy.’” J.A. 32. The judge read this
factual basis aloud during Newbold’s plea colloquy. Also at the plea colloquy, the
district court asked Newbold if he understood that the government had to prove the
following: that Newbold “willfully, knowingly, and intentionally distributed 5.3 grams
of a mixture containing a detectable amount of 5-MeO-AMT, which is a controlled
substance, and with the intent for human consumption; and that [he] knew that what [he
was] distributing was some kind of controlled substance.” J.A. 53. Newbold admitted
that he was guilty of this crime. J.A. 57. The government’s attorney clarified, and the
judge accepted, that 5-MeO-AMT was a controlled substance analogue. J.A. 58-59. And
then Newbold stipulated that the factual basis for his plea had enough information for the
district court to make a determination of guilt based on these elements. J.A. 60.
Newbold argues that his plea colloquy and the factual basis for his plea agreement
fail to show that he knew that 5-MeO-AMT was chemically similar to a controlled
substance. In so doing, Newbold fixates on McFadden’s second method of
demonstrating sufficient knowledge. Had McFadden identified only this second method,
Newbold’s likelihood of success might have been higher; at least in the plea colloquy and
factual basis for his plea agreement, the evidence displaying Newbold’s knowledge of 5-
MeO-AMT’s chemical structure was anemic. But Newbold fails to address the
McFadden Court’s first method of demonstrating sufficient knowledge: proffering
11
evidence that the defendant knew the substance he was dealing was or was treated like a
controlled substance. And here, the facts recited above adequately demonstrate evidence
of such knowledge. The government’s clarification that 5-MeO-AMT was a controlled
substance analogue does not change the fact that Newbold knew that what he was
distributing was or was treated like a controlled substance. And Newbold does not argue
that his counsel advised him incompetently or that he lacked control of his mental
faculties when he made these admissions.
Newbold’s plea is not unintelligently made or otherwise invalid solely because,
after his guilty plea was entered, the law changed in a way that would have modified
Newbold’s assessment of the government’s case and his decision to plead guilty. In
Brady v. United States, Brady asserted that his guilty plea was involuntary because he felt
coerced to take it by his fear of facing the death penalty, a punishment the Supreme Court
later invalidated for his crime. 397 U.S. at 743-46. The Supreme Court rejected this
argument. “[A]bsent misrepresentations or other impermissible conduct by state agents,
a voluntary plea of guilty intelligently made in the light of the then applicable law does
not become vulnerable because later judicial decisions indicate that the plea rested on a
faulty premise.” Id. at 757. There, where counsel competently advised Brady based on
the law applicable when he pleaded guilty, a later change in the law that would have
modified Brady’s assessment did not render the plea vulnerable to attack.
Similarly, McFadden’s clarification of the crime’s knowledge element does not
render Newbold’s guilty plea invalid. Like in Brady, Newbold’s lawyer competently
advised Newbold of the law applicable at the time he pleaded guilty. Newbold might
12
believe that the government would have been less likely to obtain a conviction against
him at trial under the new standard of proving knowledge than under the old standard.
But like in Brady, this minor modification in Newbold’s assessment of the government’s
likelihood of success at trial does not render his plea invalid. Because Newbold’s lawyer
adequately advised him of the law applicable at the time he pleaded guilty, and because--
for the reasons stated supra--the clarification of the knowledge element would not have
changed Newbold’s likely outcome, we cannot conclude that an error, let alone a plain
error, occurred. As a result, his guilty plea was valid and his conviction is affirmed.
Newbold also alleges that the underlying indictment lacked sufficient facts
demonstrating knowledge to support his charged offense. But an intelligent and
voluntary guilty plea waives arguments regarding defects in the indictment. See United
States v. Cotton, 535 U.S. 625, 631 (2002) (stating that defects in indictment are not
jurisdictional); Tollett v. Henderson, 411 U.S. 258, 266 (1973) (finding that valid guilty
plea waives nonjurisdictional errors). Because Newbold’s guilty plea was valid, he has
waived any challenge to defects in the indictment.
B.
Lastly, we consider Newbold’s challenge to the substantive reasonableness of his
sentence. We review a district court’s sentence for substantive reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007); United
States v. Howard, 773 F.3d 519, 527-28 (4th Cir. 2014). A sentence’s reasonableness
“largely depend[s] upon the specific facts of each case and the district court’s
consideration and application of the [18 U.S.C.] § 3553(a) factors to those facts.” United
13
States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006). A within-Guidelines sentence is
presumptively reasonable. United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012).
Newbold contends that his 165-month sentence is substantively unreasonable
because it fails to take into consideration his exemplary post-conviction conduct and his
medical needs. But examining the totality of the circumstances, especially under a
deferential standard of review, reveals that Newbold cannot overcome the presumption
that his within-Guidelines sentence is reasonable. The judge considered both Newbold’s
post-conviction record and Hepatitis C. Yet the judge also explained that, despite these
mitigating factors, he was concerned with Newbold’s prior criminal history, and with the
need for Newbold’s sentence to reflect the seriousness of the offense, promote respect of
the law, provide punishment, and protect the public from future crime. See 18 U.S.C.
§ 3553(a).
It is unfortunate that, under the Bureau of Prisons’ policy, Newbold’s Hepatitis C
is not serious enough to warrant the treatment he requests. But it would be an
unwarranted expansion of our role to undertake an appraisal of the Bureau of Prisons’
policy on Hepatitis C treatment in the context of a challenge to the reasonableness of a
sentence. Without improperly second-guessing responsible executive branch officials,
we express confidence that Newbold will receive all appropriate medical treatment based
on his condition and in keeping with the applicable standards of care, under both medical
practice norms and, equally important, the Eighth Amendment. But as his claim stands,
we cannot say that the district court imposed a sentence that was substantively
unreasonable when it considered the full facts of Newbold’s situation, including his
14
mitigating and aggravating circumstances, and concluded that a within-Guidelines
sentence was reasonable.
III.
For these reasons, Newbold’s conviction and the district court’s sentence are
AFFIRMED.
15