NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50215
Plaintiff-Appellee, D.C. No.
2:13-cr-00388-RGK-2
v.
EDWARD NOLAN NORWOOD, AKA MEMORANDUM*
Polo,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50249
Plaintiff-Appellant, D.C. No.
2:13-cr-00388-RGK-2
v.
EDWARD NOLAN NORWOOD, AKA
Polo,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted April 9, 2018
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: BEA and MURGUIA, Circuit Judges, and KEELEY,** District Judge.
Edward Norwood was indicted on conspiracy and distribution charges for
his role in the sale of crack cocaine to a confidential informant. The government
filed an information pursuant to 21 U.S.C. § 851 (the Information), alleging that
Norwood had a prior felony drug conviction and therefore was subject to a ten-year
mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B). The Information
identified the qualifying conviction as Norwood’s February 14, 2007 felony
conviction for possession of a controlled substance, in violation of California
Health & Safety Code § 11350.1
In November 2014, while Norwood’s federal case was pending, California
voters approved Proposition 47, which allowed defendants with prior convictions
for certain felony offenses to petition the California courts to reclassify those
convictions as misdemeanors. See Cal. Penal Code 1170.18(f)–(h), (k). In July
2015, Norwood successfully petitioned to reclassify his prior felony drug
conviction as a misdemeanor. Norwood then moved to dismiss the Information on
the ground that he no longer had a qualifying prior felony drug conviction, and the
district court granted the motion. Facing a mandatory minimum sentence of five
**
The Honorable Irene M. Keeley, United States District Judge for the
Northern District of West Virginia, sitting by designation.
1
Norwood was sentenced to five years of imprisonment for his 2007 conviction.
He committed the instant offense while on parole for that conviction.
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years, rather than ten years, Norwood entered a plea of guilty.
At sentencing, the district court treated the 2007 conviction as a felony,
which yielded three additional criminal history points and two additional criminal
history points because Norwood was still on parole at the time he committed the
instant federal offense. U.S.S.G. § 4A1.1(a), (d). Based on a Criminal History
Category VI, the district court sentenced Norwood to 72 months of imprisonment.
Norwood appeals the district court’s calculation of his criminal history
points. The government cross-appeals the district court’s dismissal of the
Information and its attendant failure to apply the ten-year mandatory minimum
sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a),
(b). We affirm in part and reverse in part.
1. We review “the district court’s interpretation of the Sentencing Guidelines
de novo, the district court’s application of the Sentencing Guidelines to the facts of
[a] case for abuse of discretion, and the district court’s factual findings for clear
error.” United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006) (quoting
United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005)).
Whether a defendant’s prior state conviction is a qualifying conviction under
the Sentencing Guidelines is a question of federal, not state, law. See United States
v. Norbury, 492 F.3d 1012, 1014 (9th Cir. 2007). Critically, when calculating
criminal history points, the sentencing court “looks to a defendant’s status at the
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time he commits the federal crime.” United States v. Yepez, 704 F.3d 1087, 1090
(9th Cir. 2012) (en banc) (per curiam); U.S.S.G. § 4A1.2. At the time Norwood
committed the instant federal offense, he had a prior final state felony drug
conviction and was on parole for that conviction. The district court correctly
determined that a reclassification under Proposition 47 did not alter these
“historical fact[s].” See Yepez, 704 F.3d at 1090 (holding that a state court’s
termination of probation “nunc pro tunc” as of the day before a defendant
committed his federal crime has “no effect on [the] defendant’s status at the
moment he committed the federal crime”); see also United States v. Salazar-
Mojica, 634 F.3d 1070 (9th Cir. 2011) (holding that a state court’s relabeling of a
conviction from a felony to a misdemeanor has no impact on the Guidelines
calculation). Thus, the district court did not err in calculating Norwood’s criminal
history points.
2. We review de novo the district court’s dismissal of an information based
on its interpretation of a federal statute. United States v. Olander, 572 F.3d 764,
766 (9th Cir. 2009). Norwood argues that the government’s cross-appeal is moot
because the Information was not “in effect” at the time he pleaded guilty. Contrary
to Norwood’s claim, § 851(a) provides only that the information must be filed
“before trial, or before entry of a plea of guilty”; it does not require that the
information to be “in effect” at the time of a plea. 21 U.S.C. § 851(a). Further, the
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government was not required to take an interlocutory appeal. The plain language of
§ 851(d) allows the government to appeal the dismissal of an information before
sentencing, but does not require it. See 21 U.S.C. § 851(d)(2). Moreover, the
government may always appeal a final sentence if it was “imposed in violation of
law.” 18 U.S.C. § 3742(b)(1). Thus, the government’s cross-appeal is neither moot
nor untimely.
During the pendency of Norwood’s appeal, we decided United States v.
Diaz, which held that Proposition 47 “does not undermine a prior conviction’s
felony-status for purposes of [18 U.S.C.] § 841.” 838 F.3d 968, 975 (9th Cir.
2016). In Diaz, we made clear that the § 841 inquiry requires “only that a
defendant have committed his federal crime after” the qualifying federal drug
offense conviction became final. Id. at 973 (quoting 21 U.S.C. § 841(b)(1)(A))
(internal citations omitted). In other words, the event triggering application of the
enhancement is the finality of the conviction. Here, it is undisputed that, at the time
of his federal sentencing, Norwood’s prior state felony drug conviction was final.
Thus, under Diaz, Norwood’s prior conviction remains a qualifying offense under
§ 841, and the district court erred when it dismissed the government’s § 851
information. See id. at 973–94.
As we have explained, § 851(a) “ensures proper notice so a defendant is able
to challenge the information. It allows a defendant to make an informed decision
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about whether or not to plead guilty.” United States v. Hamilton, 208 F.3d 1165,
1168 (9th Cir. 2000). Although Norwood was warned that the government could
appeal the dismissal of the Information, he argues on appeal that he would not have
pleaded guilty had the Information still been “in effect” at the time he entered his
plea. Having reviewed the plea colloquy, we conclude that a reasonable person in
Norwood’s position could have been confused about the potential consequences of
his guilty plea, which, in turn, could have affected the decision about whether or
not to plead. See United States v. Sperow, 494 F.3d 1223, 1228 (9th Cir. 2007).
We therefore affirm the calculation of Norwood’s criminal history points
and reverse the dismissal of the government’s § 851 information. Because we are
not convinced that Norwood’s plea was knowingly and intelligently made, we
remand with instructions to the district court to allow Norwood to withdraw his
guilty plea.
AFFIRMED in part, REVERSED in part, and REMANDED with
instructions.
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