United States v. Derrick Norwood ( 2011 )

FILED
NOT FOR PUBLICATION JUL 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 09-50513
)
Plaintiff – Appellee, ) D.C. No. 2:08-cr-01460-GHK-1
)
v. ) MEMORANDUM *
)
DERRICK TYRONE NORWOOD, )
AKA Ty-Bud, )
)
Defendant – Appellant. )
)
)
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Submitted July 12, 2011 **
Pasadena, California
Before: FERNANDEZ, RYMER, and TALLMAN, Circuit Judges.
Derrick Tyrone Norwood appeals his sentence for sale of crack cocaine
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
(Count 1 of the indictment)1 and for maintaining a residence for the wrongful
manufacture, distribution or use of a controlled substance (Count 5 of the
indictment).2 We affirm in part and remand.
(1) Norwood first asserts that the district court erred when it denied him
safety valve relief 3 on the basis that he possessed a firearm in connection with his
sale of crack cocaine offense,4 without making the necessary findings. We agree.
For safety valve purposes, the offense includes both “‘the offense of conviction
and all relevant conduct.’” United States v. Fernandez, 526 F.3d 1247, 1252 (9th
Cir. 2008); (quoting United States v. Miller, 151 F.3d 957, 960 (9th Cir. 1998)).
Here the district court expressly found that Norwood possessed a firearm in
connection with Count 5, the drug residence offense, but that offense is not one
that carries a mandatory minimum sentence, so safety valve analysis does not
apply to it. See United States v. Gamboa-Cardenas, 508 F.3d 491, 496, 498 (9th
Cir. 2007). The district court did not expressly hold that the firearm was possessed
in connection with Count 1, the sale offense, which does carry a mandatory
1
21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii).
2
21 U.S.C. § 856(a)(1).
3
18 U.S.C. § 3553(f); see also USSG §5C1.2. All references to the
Guidelines are to the November 1, 2008, version thereof.
4
18 U.S.C. § 3553(f)(2).
2
minimum sentence and to which safety valve analysis does apply. Although the
district court did properly group 5 the two offenses, it made no express finding that
possession of the firearm constituted relevant conduct as to Count 1. On this
record, firearm possession may or may not have been relevant conduct as to Count
1,6 but that is a determination that should be made by the district court in the first
instance. Thus, we will remand so that the district court can further explore the
safety valve issues7 and make the appropriate findings. It shall not revisit its
decision that relevant conduct can be considered, or its decision to group the
offenses. We affirm both of those decisions. If the district court determines that
Norwood is entitled to safety valve relief, it shall vacate its sentence and resentence
him on that basis.
(2) Norwood next asserts error because the government did not argue that
he should be sentenced at the “low end of the applicable Sentencing Guidelines
5
See USSG §3D1.2(b).
6
We note that the mere fact that the drug residence offense occurred some
months after the sale offense does not demonstrate that firearm possession was not
relevant conduct as a matter of law. See United States v. Pitts, 6 F.3d 1366, 1373
(9th Cir. 1993).
7
The government asserts that Norwood did not comply with the proffer
requirement. 18 U.S.C. § 3553(f)(5). The district court did not make a finding on
that issue.
3
imprisonment range,” that is at forty-six months.8 It is true that the government
and Norwood agreed that the government would make that recommendation, but
they also agreed that the government could argue against safety valve relief. We
must construe those agreements using normal contract law standards,9 and when
we do so, it is apparent that the agreement was not that the government must make
the absurd argument that even if the mandatory minimum was sixty months, the
district court should sentence Norwood to forty-six months. If the district court
should decide that the sixty-month minimum does not apply, that will be another
matter entirely. The district court did not err, much less plainly err.
(3) Finally, Norwood argues that the applicable Fair Sentencing Act
provision 10 applies retroactively to preclude the sixty-month mandatory minimum
sentence for the sale of crack cocaine, which was imposed by the district court. On
this appeal, that argument is precluded by United States v. Baptist, No. 09-50315,
slip. op. 7299, 7307 (9th Cir. June 2, 2011) (per curiam).
AFFIRMED in part, and REMANDED for further proceedings.
8
He did not make this argument at the district court. We review for plain
error. See United States v. Lindsey, 634 F.3d 541, 550 (9th Cir. 2011).
9
See United States v. Trapp, 257 F.3d 1053, 1056 (9th Cir. 2001).
10
Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a)(2), 124 Stat.
2372 (2010).
4