United States v. Norvell

• Decision Date: 09 October 2013
• Docket Number: No. 12–3415.,12–3415.
• Citation: 729 F.3d 788
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Jeremy Dionne NORVELL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

729 F.3d 788

UNITED STATES of America, Plaintiff–Appellee
v.
Jeremy Dionne NORVELL, Defendant–Appellant.

No. 12–3415.

United States Court of Appeals,
Eighth Circuit.

Submitted: June 14, 2013.
Filed: Sept. 3, 2013.
As Corrected Sept. 4, 2013.
Rehearing and Rehearing En Banc Denied Oct. 9, 2013.

[729 F.3d 790]

Katherine M. Menendez, AFPD, Minneapolis, MN, for Appellant.

Allen A. Slaughter, AUSA, Minneapolis, MN, for Appellee.

Before LOKEN, BRIGHT, and BYE, Circuit Judges.

BYE, Circuit Judge.

Jeremy Norvell pleaded guilty to conspiracy to distribute oxycodone, oxymorphone, cocaine, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. He moved to withdraw his guilty plea, contending it was not knowing, intelligent, and voluntary because, most significantly, of his misunderstanding that he was guaranteed the ability to attend Minnesota Teen Challenge, a long-term, faith-based chemical dependency program, before the district court sentenced him. He also alleged his counsel provided ineffective assistance during plea negotiations. The district court ¹ denied his motion and Norvell appeals. We affirm.

I

Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) agents learned from cooperating individuals that Norvell dealt drugs in Duluth, Minnesota. Authorities conducted several “controlled buys” of Opana, a brand name of oxymorphone, a powerful opioid analgesic. They obtained a search warrant and executed it at Norvell's house, during which time he unsuccessfully tried to escape in his car and struck a police vehicle. Agents recovered 343 forty-milligram Opana pills, as well as cash and marijuana.

Lengthy plea negotiations followed. The government offered its first plea deal to Norvell in October 2011. The deal required Norvell to agree to a reckless endangerment enhancement for striking the police vehicle, as well as the government's position Norvell could be a career offender based upon his two prior convictions for vehicular flight from a police officer. See Presentence Investigation Report (PSR) 11–12. Norvell declined the deal.

The government extended a second plea offer on November 16, 2011. After Norvell had declined the first plea deal, Kevin Cornwell, Norvell's attorney, discovered one of the vehicular flight convictions was classified as a gross misdemeanor, and therefore Norvell did not qualify as a career offender. A disagreement persisted over Norvell's criminal history category. The government believed it was VI; Norvell thought it was lower. Norvell's attorney warned him of the likelihood the government would pursue drug conspiracy charges, and thus attribute greater drug quantities and harsher penalties to Norvell, if he refused the plea deal. Norvell did just that.

The government responded by filing a Second Superseding Indictment, which added a charge of conspiracy to distribute oxycodone, oxymorphone, cocaine, and marijuana, charges for six specific acts of oxymorphone distribution, and a charge of possession with intent to distribute cocaine. The government also provided notice

[729 F.3d 791]

it intended to rely on Norvell's 1997 conviction for cocaine possession to enhance the applicable statutory maximum penalties for each count from twenty to thirty years. 21 U.S.C. §§ 841, 851.

Plea discussions continued. Norvell attended a reverse proffer session, at which time the government made a third offer, which required Norvell to plead guilty to the conspiracy charge. Norvell and Cornwell met privately following the government's presentation. At that time, Cornwell received an email stating Norvell had been accepted into Minnesota Teen Challenge, a highly-structured, faith-based program for people with chemical dependancy challenges. Criminal defendants sometimes attend Teen Challenge between their guilty plea and sentencing, and upon successful completion of the program, may receive lighter sentences. Norvell expressed a strong desire to attend Teen Challenge. Norvell and Cornwell concluded their meeting. Two U.S. Marshals Special Agents (“SA”), Nicholas Garlie and Kylie Williamson, escorted Norvell back to a holding area. Norvell voiced his desire to attend Teen Challenge to the SAs. According to Norvell, Garlie and Williamson told him he would have to plead guilty to attend Teen Challenge. The SAs disputed that assertion in sworn testimony.

Norvell pleaded guilty to the conspiracy count. The court, government counsel, and Cornwell engaged in a lengthy colloquy to ensure Norvell's plea was knowing, intelligent, and voluntary, and that it was supported by a sufficient factual basis. Norvell affirmed he had read and understood the entire agreement. He acknowledged the court would ultimately determine his criminal history category. He stated his attorney had “done a wonderful job” and government counsel “did a good job of explaining everything for [him].” Plea Hr'g Tr. 4. He also outlined the factual basis for his plea. He admitted he possessed over 800 forty-milligram Opana pills during 2011 and participated in each of the “controlled buys.”

The court then conducted its own inquiry, during which time it had the following exchange with Norvell:

The Court: On the other side of that, has anyone made promises to you about what's going to happen other than the promises in the plea agreement?

Norvell: Just I was going to get an opportunity to go to Teen Challenge before my sentencing[.]

Id. 32. After inquiring further regarding the content of Teen Challenge and the government's position regarding Norvell's participation in the program, the court reminded Norvell that it had the final word with regard to Teen Challenge and Norvell's sentence:

The Court: I want to just make sure you understand and we all understand what's happening, but [Teen Challenge is] not part of your sentence itself. And it may be included as part of what you do as a program, but you still got to get sentenced by the Court as to what happens here. Correct?

Norvell: Yes, sir.

The Court: Okay. And that's what you understand?

Norvell: Yes, sir.

Id. 33–34. At the conclusion of the hearing, Norvell entered a formal guilty plea.

Approximately one month later, Norvell filed a motion to modify his order of detention to participate in Teen Challenge. The district court denied the motion, reasoning that 18 U.S.C. § 3145(c), the governing statute, permitted the court to modify Norvell's detention order only if Norvell demonstrated “exceptional reasons why [his] detention would not be appropriate.” Although laudable, the desire to seek

[729 F.3d 792]

treatment and rehabilitate oneself is not “ ‘clearly out of the ordinary, uncommon, or rare.’ ” Order Re: Mot. to Modify Detention Order 2 (quoting United States v. Larue, 478 F.3d 924, 926 (8th Cir.2007) (per curiam)).

Through new counsel,² Norvell moved to withdraw his guilty plea. The court denied the motion. Norvell renewed his request and the parties agreed to an evidentiary hearing, at which Norvell testified on his own behalf. He claimed he understood the court's statement Teen Challenge was not “part of” his sentence to mean he was guaranteed a place in Teen Challenge, but his ultimate sentence would depend on his performance in the program. He reiterated his belief Special Agent Garlie told him he would have to plead guilty to attend Teen Challenge. He also stated had Cornwell correctly advised him of his criminal history category, he would have taken the government's first plea deal, which did not include the conspiracy charge.

Cornwell testified as well. He conceded he had incorrectly calculated Norvell's criminal history category by not discovering Norvell's career offender status prior to the time Norvell declined the first plea deal, about which Cornwell felt “terrible.” Mot. Hr'g Tr. 158. But he also affirmed that “any time [they] talked about the plea agreement,” he reminded Norvell it was ultimately up to the court to calculate criminal history. Id. 123. He said the same thing with respect to Teen Challenge. Id. 141. Garlie and Williamson also refuted Norvell's testimony accusing them of stating a guilty plea was a precondition to attend Teen Challenge.

The district court denied Norvell's motion to withdraw his guilty plea. The court calculated Norvell's offense level at 32 and his criminal history category at III. This produced a guidelines range of 151 to 188 months. The court sentenced Norvell to 188 months, the top of the range. Norvell then filed this timely appeal.

II

Norvell makes two arguments. First, he claims the district court abused its discretion by denying his motion to withdraw his guilty plea. Second, he claims Cornwell provided ineffective assistance during plea negotiations.

A. Guilty Plea

Norvell argues the district court erred by denying his motion to withdraw for three reasons: (1) his misunderstanding regarding Teen Challenge; (2) the insufficient factual basis supporting his plea; and (3) other facts and circumstances.

We review the district court's denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Cruz, 643 F.3d 639, 641 (8th Cir.2011). A defendant may withdraw a guilty plea that has been accepted by the court if he demonstrates “a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). The defendant bears the burden of showing such a reason. Cruz, 643 F.3d at 642. Moreover,

[e]ven if such a fair and just reason exists, before granting the motion a court must consider “whether the defendant asserts his innocence of the charge, the length of time between the guilty plea and the motion to withdraw it, and whether the government will be prejudiced if the court grants the motion.”

United States v. Ramirez–Hernandez, 449 F.3d 824, 826 (8th Cir.2006) (quoting

[729 F.3d 793]

United States v. Nichols, 986 F.2d 1199, 1201 (8th Cir.1993)). If the defendant does not demonstrate fair and just grounds, the court need not consider these additional factors. United States v. Wicker, 80 F.3d 263,...