Norman v. United States

Sixth Circuit

Norman v. United States

1 F. App'x 300

CourtCourt of Appeals for the Sixth Circuit

DecidedJanuary 8, 2001

DocketNo. 98-4305

StatusPublished

Cited by1 cases

This text of 1 F. App'x 300 (Norman v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Norman v. United States, 1 F. App'x 300 (6th Cir. 2001).

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Opinion

PER CURIAM.

Petitioner, Marcus Norman, appeals the denial of his motion to vacate his sentence under 28 U.S.C. § 2255, claiming ineffective assistance of counsel for the failure of counsel to file a notice of appeal when requested by the petitioner. For reasons stated herein, we reverse and remand.

In 1995, Norman pleaded guilty to a two-count indictment, charging him with [301]*301possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and with the use of a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). He received a sentence of 195 months. On appeal, the § 924(c) conviction was reversed because Norman did not actively use or carry a firearm in relation to the drug offense, as required under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). See United States v. Norman, 114 F.3d 1190, 1997 WL 295345 (6th Cir.l997)(table).

On remand, the district court resen-tenced Norman to 168 months of incarceration, which included a two-point increase for possession of a firearm under USSG § 2Dl.l(b)(l). Norman requested his counsel to file a notice of appeal. In particular, he wanted to challenge the two-point firearm enhancement under § 2Dl.l(b)(l), but counsel felt there was no appealable issue and refused to do so.

Although the district court denied relief, finding that an attorney is not required to file an appeal which would be groundless, it did not have the benefit of two cases which were decided subsequent to its decision. See Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); Ludwig v. United States, 162 F.3d 456, 459 (6th Cir.1998). Because of those subsequent cases, the United States has conceded error.

Therefore, this matter will be reversed and remanded in order for counsel to file a notice of appeal so that Norman may pursue the merits of his claim on appeal.

REVERSED AND REMANDED.

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PER CURIAM.

Petitioner, Marcus Norman, appeals the denial of his motion to vacate his sentence under 28 U.S.C. § 2255, claiming ineffective assistance of counsel for the failure of counsel to file a notice of appeal when requested by the petitioner. For reasons stated herein, we reverse and remand.

In 1995, Norman pleaded guilty to a two-count indictment, charging him with [301]*301possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and with the use of a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). He received a sentence of 195 months. On appeal, the § 924(c) conviction was reversed because Norman did not actively use or carry a firearm in relation to the drug offense, as required under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). See United States v. Norman, 114 F.3d 1190, 1997 WL 295345 (6th Cir.l997)(table).

On remand, the district court resen-tenced Norman to 168 months of incarceration, which included a two-point increase for possession of a firearm under USSG § 2Dl.l(b)(l). Norman requested his counsel to file a notice of appeal. In particular, he wanted to challenge the two-point firearm enhancement under § 2Dl.l(b)(l), but counsel felt there was no appealable issue and refused to do so.

Although the district court denied relief, finding that an attorney is not required to file an appeal which would be groundless, it did not have the benefit of two cases which were decided subsequent to its decision. See Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); Ludwig v. United States, 162 F.3d 456, 459 (6th Cir.1998). Because of those subsequent cases, the United States has conceded error.

Therefore, this matter will be reversed and remanded in order for counsel to file a notice of appeal so that Norman may pursue the merits of his claim on appeal.

REVERSED AND REMANDED.

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