United States v. Norwood

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 10, 2023
• Docket: 22-6104
• Status: Unpublished

Opinion

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Appellate Case: 22-6104 Document: 010110811249 Date Filed: 02/10/2023 Page: 3

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 Appellate Case: 22-6104 Document: 010110811249 Date Filed: 02/10/2023 Page: 4

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 Appellate Case: 22-6104 Document: 010110811249 Date Filed: 02/10/2023 Page: 5

§ 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