United States v. Norwood

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judgment is not binding precedent, except under the doctrines of law of the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
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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).
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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.
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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
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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
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