UNITED STATES of America, v. Michael NORWOOD, Appellant.
No. 13-2836.
United States Court of Appeals, Third Circuit.
Opinion Filed May 13, 2014.
123
Submitted Under Third Circuit LAR 34.1(a) March 18, 2014.
Michael Norwood, Butner, NC, pro se.
OPINION
GREENAWAY, JR., Circuit Judge.
Following a jury trial, Appellant Michael Norwood (“Norwood“) was convicted of bank robbery, armed bank robbery, carjacking, two counts of use of a firearm in relation to a crime of violence (one for robbery and another for carjacking), and possession of a firearm by an armed career criminal. Norwood was initially sentenced in 1997 and was resentenced in 1999, April 2013 and June 2013. Norwood appeals his most recent resentencing on a variety of grounds.
For the reasons discussed below, we will affirm the judgment of conviction.
I. BACKGROUND
Because we write primarily for the parties who are familiar with the facts and procedural history, we recount only the essential facts.
On April 12, 1996, Norwood entered the Amboy National Bank in Old Bridge, New Jersey and walked out with over $15,000 that he had demanded from the bank tellers, while brandishing a handgun. Shortly thereafter, Norwood approached a motorist, demanded that he get out of his car at gunpoint, and drove away. Later, the motorist‘s vehicle was recovered, together with Norwood‘s handgun. The following day the police arrested Norwood and an accomplice.
While the procedural history is rather extensive, a truncated overview is warranted. At Norwood‘s first trial, Norwood waived his right to counsel and represented himself. Assistant Federal Public Defender (“AFPD“) Lori Koch served as standby counsel. A mistrial was declared when the jury was unable to reach a verdict.
At the bifurcated retrial Norwood represented himself again. The jury found Norwood guilty of bank robbery, armed bank robbery, carjacking and two counts of use of a firearm in relation to a crime of violence (one for robbery and another for carjacking). In the second half of the bifurcated trial, a jury found Norwood guilty of possession of a firearm by an armed career criminal. Based on these convictions, Norwood received an aggregate prison term of life plus 25 years.
After this Court rejected Norwood‘s first appeal, United States v. Norwood, 142 F.3d 430 (3d Cir.1998), Norwood filed a petition for collateral review pursuant to
In September 1999, the District Court granted Norwood‘s pro se motion for the appointment of new counsel, other than AFPD Koch, finding that an actual conflict existed because Norwood filed a complaint against AFPD Koch with the New Jersey Supreme Court‘s Office of Attorney Ethics. (See Supp.App. 132-33.)
In June 2006, Norwood filed a second
On remand, in April 2013, the District Court issued an amended judgment on certain counts of the indictment without holding a formal resentencing hearing. On appeal, the Government conceded that the District Court erred and that Norwood was entitled to a de novo resentencing hearing.
Prior to this resentencing hearing, the District Court appointed AFPD Christopher O‘Malley to represent Norwood. Thereafter, Norwood moved to disqualify AFPD O‘Malley, arguing that his previous conflict with AFPD Koch should be imputed to the entire Federal Public Defender‘s Office. The District Court denied the motion. Norwood then filed a motion to proceed pro se, which the District Court granted. In June 2013, the District Court held the resentencing hearing (the “June 2013 Resentencing“) and resentenced Norwood to an aggregate term of imprisonment of five hundred months. Norwood now appeals the sentence, the denial of his motion to disqualify AFPD O‘Malley, and the grant of his motion to proceed pro se.
II. JURISDICTION
The District Court had jurisdiction under
III. ANALYSIS
A. Waiver of the Right to Counsel
“Our review of whether a defendant‘s waiver of counsel was knowing and intelligent is plenary as it involves only legal issues.” United States v. Stubbs, 281 F.3d 109, 113 n. 2 (3d Cir.2002).
Before a criminal defendant can be permitted to proceed pro se, a court must make certain that he is knowingly, voluntarily, and intelligently waiving his Sixth Amendment right to counsel. See, e.g., Faretta v. California, 422 U.S. 806, 835 (1975); see also
Norwood argues that—while he knowingly, voluntarily, and intelligently waived his right to counsel after the District Court conducted a proper Faretta colloquy in 1997—Norwood revoked that waiver “when counsel was appointed for [Norwood‘s] resentencing on October 29, 1999, and revoked [it] again when counsel was appointed on April 5, 2013.” (Appellant Br. 7-8.) According to Norwood, these revocations required the District Court to
We disagree. Absent an express revocation of the criminal defendant‘s waiver or some other change in circumstances, a district court has no standing obligation to revisit the waiver question and conduct another Faretta colloquy at a later stage in criminal proceedings. Cf. United States v. McBride, 362 F.3d 360, 367 (6th Cir.2004) (adopting rule established by “[o]ther circuits[, which] have held that a valid waiver remains in effect at subsequent proceedings in the absence of an explicit revocation by the defendant or a change of circumstances that would suggest that the district court should make a renewed inquiry of the defendant“).1
On the record before us, there is nothing to suggest that Norwood explicitly revoked his prior waiver of the right to counsel. There is also no evidence suggesting that his waiver was anything other than knowing, voluntary and intelligent. Norwood‘s motion to proceed pro se clearly established his desire to exercise his right to self-representation. Furthermore, having proceeded pro se for a number of years in this case, Norwood has demonstrated a keen understanding of the implications and ramifications of his decision to proceed pro se. (See Supp.App. 125 (stating that the “defendant has proceeded pro se throughout the course of this case, including trial, sentencing, two direct appeals, and several post-appeal applications” and “has a constitutional right to represent himself at sentencing“).) The record does not reflect any change of heart on this issue. Moreover, Norwood sets forth no evidence reflecting a change in circumstances sufficient to have required a new inquiry into his decision to waive his right to counsel at the June 2013 Resentencing. Thus, the District Court did not err.
B. Motion to Disqualify Counsel
“We review the district court‘s order in two stages.” United States v. Stewart, 185 F.3d 112, 120 (3d Cir.1999). “First, we exercise plenary review to determine whether the district court‘s disqualification [decision] was arbitrary—the product of a failure to balance proper considerations of judicial administration against the right to counsel.” Id. (internal quotation marks omitted). “If we find that the district court‘s decision was not arbitrary, we then determine whether the court abused its discretion.” Id.
Norwood argues that the District Court erred in failing to grant his motion to disqualify his court-appointed counsel, AFPD O‘Malley, pursuant to Rule 1.10(a) of the New Jersey Rule of Professional Conduct (“RPC“). (Appellant Br. 8-9.) According to Norwood, the District Court erred because Norwood had an actual conflict with AFPD Koch, who had represented him previously in this case. (Id.) As such, Norwood argues that all attorneys in the Office of the Federal Public Defender should have been prohibited from representing him pursuant to Rule 1.10(a). (Id.)
The District Court did not err. RPC 1.10(a) states that “[w]hen lawyers are associated in a firm, none of them shall
C. District Court‘s Sentencing Determinations
We have plenary review of a district court‘s sentencing determination to the extent that it involves the application of legal principles. See, e.g., Gov‘t of the Virgin Islands v. Martinez, 239 F.3d 293, 297 (3d Cir.2001).
1. Application of the Guideline Manual In Effect on the Date of Sentencing
Norwood argues that the District Court should have used the Guidelines Manual in effect on the date of his resentencing, namely, the 2012 Sentencing Guidelines Manual. (Appellant Br. 9.) However, the language of
2. Violent Felony Convictions
The Armed Career Criminal Act (“ACCA“)
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony ... committed on occasions different from one another, such person shall be ... imprisoned not less than fifteen years....
Norwood challenges the District Court‘s application of the ACCA, contending that his prior federal bank robbery conviction and his prior state conviction for attempted aggravated assault on a police officer were part of a single criminal episode and must be treated as one conviction. (Appellant Br. 10.)
This contention is in error. In United States v. Schoolcraft, 879 F.2d 64 (3d Cir.1989) (per curiam), we adopted the “separate episodes” test for purposes of enhanced sentencing under the ACCA:
The issue of enhanced sentencing under the ACCA has frequently arisen in cases where the defendant received multiple convictions in a single judicial proceeding. In each of these cases, courts have held that the individual convictions may be counted for purposes of sentencing enhancement so long as the criminal epi-
sodes underlying the convictions were distinct in time ... In each case, the “separate episode test” was adopted. Recently, the Second Circuit stated that “it is fairly well-established in other circuits that § 924(e)(1) ‘s reference to ‘convictions’ pertains to single ‘episodes’ of felonious criminal activity that are distinct in time....”
Id. at 73 (citing United States v. Towne, 870 F.2d 880, 889 (2d Cir.1989)). In Schoolcraft, we did not describe in detail the criteria that should be used to determine what constitutes a “separate” episode for purposes of the ACCA. However, several circuits have explained that even brief differences in time between crimes suffice to constitute separate episodes. For example, the Seventh Circuit stated that “it is necessary to look to the nature of the crimes, the identities of the victims, and the locations.” United States v. Cardenas, 217 F.3d 491, 492 (7th Cir.2000). Additionally, “we must ask whether the defendant had sufficient time to cease and desist or withdraw from the criminal activity.” Id.
In the instant case, the separate episode test makes it clear that the bank robbery and attempted aggravated assault were two distinct crimes. The two crimes were committed in different states and against different victims. Norwood had opportunities to cease and desist from further criminal activity. Therefore, each crime must be seen as a separate and distinct criminal episode. The multiple crimes do not constitute a single criminal episode, as Norwood contends. Therefore, the District Court properly concluded that they constituted separate offenses for purposes of
Norwood also argues that the District Court “found facts that he had three prior convictions” for violent felonies that occurred on occasions different from one another and thereby violated his “Sixth Amendment jury-trial right.” (Appellant Br. 11.) This argument is also without merit. As this Court stated in United States v. Blair, 734 F.3d 218, 227-28 (3d Cir.2013), a District Court is permitted to take judicial notice of “details related to prior convictions” without fact-finding by a jury. The District Court‘s findings were therefore proper.
3. Restitution
Norwood argues that the District Court abused its discretion in failing to make specific factual findings regarding his ability to pay restitution. While it is true that this Court has held that such findings are required where there is a dispute over restitution, see United States v. Pollak, 844 F.2d 145, 155-56 (3d Cir.1988), we explained in United States v. Kendis, 883 F.2d 209, 211 (3d Cir.1989) that such specific findings relating to a defendant‘s ability to pay restitution are not required when there is no dispute regarding a defendant‘s ability to make restitution. Since there was no dispute about Norwood‘s ability to pay either prior to or at any of Norwood‘s sentencing hearings, the District Court did not abuse its discretion.
4. Consecutive Sentences
The District Court sentenced Norwood to a mandatory five-year consecutive sentence on Count Three (use of a firearm in relation to armed bank robbery) and a mandatory twenty-year consecutive sentence on Count Five (use of a firearm in relation to carjacking). (See Supp.App. 22.) In so doing, the District Court relied upon the text of the federal statute. See
IV. CONCLUSION
For the foregoing reasons, we will affirm the judgment of conviction.