566 F. App'x 123
3rd Cir.2014Background
- In 1996 Norwood robbed a bank at gunpoint, carjacked a motorist, and was arrested the next day; he was convicted of bank robbery, armed bank robbery, carjacking, two § 924(c) counts, and possession of a firearm by an armed career criminal.
- Norwood represented himself at trial after a Faretta colloquy; after convictions and appeals, he received life + 25 years and pursued multiple § 2255 petitions and appeals, some dismissed or denied; this Court later vacated part of his sentence on double jeopardy grounds and remanded for resentencing.
- On remand the District Court amended the judgment in April 2013 but, after the Government conceded error, held a de novo resentencing in June 2013, appointing AFPD O’Malley; Norwood moved to disqualify O’Malley and then moved to proceed pro se, which the court granted.
- At the June 2013 resentencing the court applied the 1995 Sentencing Guidelines (the manual in effect at the original sentencing), treated certain prior convictions as separate for ACCA purposes, imposed mandatory consecutive § 924(c) terms, and ordered restitution.
- Norwood appealed the resentencing, challenging (1) the sufficiency of his pro se waiver (Faretta), (2) denial of his motion to disqualify AFPD O’Malley under RPC 1.10(a), (3) the Guidelines edition used, and (4) ACCA treatment and sentencing factfinding; the Third Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of pro se waiver at 2013 resentencing | Norwood: prior waiver revoked when counsel was later appointed; court needed a new Faretta colloquy | Gov't: prior valid Faretta waiver remains unless explicitly revoked or circumstances changed | Court: No new colloquy required; waiver remained knowing, voluntary, intelligent absent explicit revocation or changed circumstances |
| Disqualification of AFPD O’Malley under RPC 1.10(a) | Norwood: prior conflict with AFPD Koch imputed to entire FPD office, barring O'Malley | Gov't: RPC 1.10(a) permits representation unless significant risk of materially limiting representation exists | Court: Denial of disqualification affirmed; Norwood failed to show any significant risk |
| Which Guidelines manual to apply on remand | Norwood: district court should use 2012 Guidelines in effect at resentencing | Gov't: statute requires use of guidelines in effect at prior sentencing | Court: Applied 1995 Guidelines (original sentencing manual) per 18 U.S.C. § 3742(g)(1); affirmed |
| ACCA enhancements and related factfinding | Norwood: prior federal bank robbery and state attempted aggravated assault were one episode; district court impermissibly found facts increasing sentence | Gov't: crimes were distinct episodes; court may take judicial notice of prior convictions | Court: Crimes were separate episodes for ACCA; district court properly relied on prior convictions without violating Sixth Amendment |
Key Cases Cited
- Faretta v. California, 422 U.S. 806 (recognizing the defendant's constitutional right to proceed pro se and requiring a knowing, voluntary, intelligent waiver)
- Stubbs v. United States, 281 F.3d 109 (discussing standards for reviewing Faretta waivers)
- McBride v. United States, 362 F.3d 360 (holding a valid waiver remains in effect absent explicit revocation or changed circumstances)
- United States v. Schoolcraft, 879 F.2d 64 (adopting the separate-episode test for ACCA sentencing enhancements)
- Deal v. United States, 508 U.S. 129 (permitting enhanced § 924(c) penalties for second-or-subsequent convictions in the same indictment)
- United States v. Blair, 734 F.3d 218 (allowing district courts to take judicial notice of details of prior convictions for sentencing purposes)