IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

ANTWAND NORWOOD, :

Petitioner, :

vs. : CIVIL ACTION NO. 09-0204-CG-C

UNITED STATES OF : CRIMINAL ACTION NO. 06-0176-CG

AMERICA, 

:

Respondent.

REPORT AND RECOMMENDATION

Petitioner, Antwand Norwood, a federal prison inmate proceeding pro

se, has filed a motion to vacate, set aside or correct his sentence pursuant to 28

U.S.C. § 2255 (Doc. 674), as amended (Doc. 712). This action has been

referred to the undersigned for entry of a report and recommendation pursuant

to 28 U.S.C. § 636(b)(1)(B). An evidentiary hearing was held on December 17,

2009. Following consideration of all relevant pleadings in this case, as well as

the testimony of petitioner and Cindy Powell, Esquire, at the evidentiary

hearing, it is recommended that Norwood’s § 2255 motion be denied and a

certificate of appealability not be granted.

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1 The superseding indictment added a forfeiture count with respect to all named

defendants. (See id., Count Thirty-Five)

2

FINDINGS OF FACT

1. On August 3, 2006, a criminal complaint was issued charging

Norwood with conspiracy to possess with intent to distribute cocaine and crack

cocaine in violation of 21 U.S.C. § 846, possession with intent to distribute

cocaine in violation of 21 U.S.C. § 841(a)(1), and with being a felon in

possession of ammunition and/or a firearm in violation of 18 U.S.C. §

922(g)(1). (See Doc. 1) By superseding indictment, filed in open court on

August 31, 2006, Norwood was charged with one count of conspiracy to

possess with intent to distribute marijuana, cocaine and more than 50 grams of

crack cocaine in violation of 21 U.S.C. § 846, one count of possession with

intent to distribute cocaine (on August 2, 2006) in violation of 21 U.S.C. §

841(a)(1), and one count of possessing ammunition, after having been

previously convicted of three felonies, in violation of 18 U.S.C. § 922(g)(1).

(Doc. 199)1

2. One day after the United States filed notice of intent to seek

enhancement of Norwood’s sentence if convicted of Count One of the

Superseding Indictment (Doc. 294 (“The Defendant therefore faces a minimum

mandatory term of twenty (20) years to life imprisonment without release, a

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3

fine of up to $8,000,000 and a term of supervised release of at least ten (10)

years as to Count One of the Indictment.”)), that is, on October 11, 2006, the

parties filed a plea agreement and factual resume with the Court (Doc. 298).

The plea agreement, reads, in relevant part, as follows:

PLEA AGREEMENT

The defendant, ANTWAND NORWOOD, represented

by his counsel, and the United States of America have reached

a Plea Agreement in this case, pursuant to Rule 11 of the Federal

Rules of Criminal Procedure, the terms and conditions of which

are as follows:

RIGHTS OF THE DEFENDANT

1. The defendant understands his/her rights as

follows:

a. To be represented by an attorney;

b. To plead not guilty;

c. To have a trial by an impartial jury;

d. To confront and cross-examine witnesses

and to call witnesses and produce other evidence in his/her

defense;

e. To not be compelled to incriminate

himself/herself.

WAIVER OF RIGHTS AND PLEA OF GUILTY

2. The defendant waives rights b through e, listed

above, and pleads guilty to Count 1 of the Superseding

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4

Indictment, charging a violation of 21 United States Code,

Section 846, conspiracy to possess with the intent to distribute

controlled substances.

...

4. The defendant expects the Court to rely upon

his/her statements here and his/her response to any questions

that he/she may be asked during the guilty plea hearing.

5. The defendant is not under the influence of

alcohol, drugs, or narcotics. He/She is certain that he/she is in

full possession of his/her senses and mentally competent to

understand this Plea Agreement and the guilty plea hearing

which will follow.

6. The defendant has had the benefit of legal counsel

in negotiating this Plea Agreement. He/She has discussed the

facts of the case with his/her attorney, and his/her attorney has

explained to the defendant the essential legal elements of the

criminal charge(s) which has/have been brought against him/her.

The defendant’s attorney has also explained to the defendant

his/her understanding of the United States’ evidence.

7. The defendant understands that the United States

has the burden of proving each of the legal elements of the

criminal charge(s) beyond a reasonable doubt. The defendant

and his/her counsel have discussed possible defenses to the

charge(s). The defendant believes that his/her attorney has

represented him/her faithfully, skillfully, and diligently, and

he/she is completely satisfied with the legal advice of his/her

attorney.

8. A separate document, entitled Factual Resume,

will be submitted to the Court as evidence at the guilty plea

hearing. The Factual Resume is incorporated by reference into

this Plea Agreement. The defendant and the United States agree

that the Factual Resume is true and correct. 

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9. This plea of guilty is freely and voluntarily made

and is not the result of force, threats, promises, or

representations apart from those set forth in this Plea

Agreement. There have been no promises from anyone as to the

particular sentence that the Court may impose. The defendant

avers that he/she is pleading guilty because he/she knows that

he/she is guilty.

PENALTY

10. The maximum penalty the Court could impose as

to Count One of the Superseding Indictment is:

a. 20 years to life imprisonment;

b. A fine not to exceed $8,000,000;

c. A term of supervised release of 10 years,

which would follow any term of imprisonment. If the defendant

violates the conditions of supervised release, he/she could be

imprisoned for the entire term of supervised release; and

d. A mandatory special assessment of

$100.00.

SENTENCING

11. The Court will impose the sentence in this case.

The United States Sentencing Guidelines apply in an advisory

manner to this case. The defendant has reviewed the application

of the Guidelines with his/her attorney and understands that no

one can predict with certainty what the sentencing range will be

in this case until after a pre-sentence investigation has been

completed and the Court has ruled on the results of that

investigation. The defendant understands that at sentencing, the

Court may not necessarily sentence the defendant in accordance

with the Guidelines. The defendant understands that he/she will

not be allowed to withdraw his/her guilty plea if the applicable

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guideline range is higher than expected, if the Court departs

from the applicable advisory guideline range, or if the Court

imposes a sentence notwithstanding the Guidelines.

12. The United States may provide all relevant

sentencing information to the Probation Office for purposes of

the pre-sentence investigation. Relevant sentencing information

includes, but is not limited to, all facts and circumstances of this

case and information concerning the defendant’s conduct and

background.

13. The defendant understands that this Plea

Agreement does not create any right to be sentenced in

accordance with the Sentencing Guidelines, or below or within

any particular guideline range, and fully understands that

determination of the sentencing range or guideline level, or the

actual sentence imposed, is solely the discretion of the Court.

14. Both the defendant and the United States are free

to allocute fully at the time of sentencing.

.. .

UNITED STATES’ OBLIGATIONS

16. The United States will not bring any additional

charges against the defendant related to the facts underlying the

Superseding Indictment and will move to dismiss Counts 25 and

28 at sentencing. This agreement is limited to the United States

Attorney’s Office for the Southern District of Alabama and does

not bind any other federal, state, or local prosecuting authorities.

17. The United States will recommend to the Court

that the defendant be sentenced at the low end of the applicable

advisory sentencing guideline range as determined by the Court.

APPLICATION OF U.S.S.G. § 5K1.1 AND/OR FED.R.CRIM.P. 35

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18. If the defendant agrees to cooperate with the

United States, he/she agrees to the following terms and

conditions:

...

g. If the defendant provides full, complete,

truthful and substantial cooperation to the United States, which

results in substantial assistance to the United States in the

investigation or prosecution of another criminal offense, a

decision specifically reserved by the United States in the

exercise of its sole discretion, then the United States agrees to

move for a downward departure in accordance with Section

5K1.1 of the United States Sentencing Guidelines or Rule 35 of

the Federal Rules of Criminal Procedure, whichever the United

States deems applicable. The United States specifically reserves

the right to make the decision relating to the extent of any such

departure request made under this agreement based upon its

evaluation of the nature and extent of the defendant’s

cooperation. The defendant understands that the United States

will make no representation or promise with regard to the exact

amount of reduction, if any, the United States might make in the

event that it determines that the defendant has provided

substantial assistance. The defendant understands that a mere

interview with law enforcement authorities does not constitute

substantial assistance for this purpose. The defendant also

understands that should he/she provide untruthful information

to the United States at any time, or should he/she fail to disclose

material facts to the United States at any time, the United States

will not make a motion for downward departure. If the

defendant’s effort to cooperate with the United States does not

amount to substantial assistance as determined solely by the

United States, the United States agrees to recommend to the

district court judge who sentences the defendant that the

defendant receive a sentence at the low end of the applicable

advisory guideline range.

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. . . 

LIMITED WAIVER OF RIGHT TO APPEAL SENTENCE

19. The defendant acknowledges that he/she is aware

that 18 U.S.C. § 3742 affords a defendant the right to appeal the

sentence imposed. In exchange for the recommendations made

by the United States in this Plea Agreement, the defendant

knowingly and voluntarily waives the right to appeal any

sentence imposed in this case.

20. With the limited exceptions noted below, the

defendant also waives his/her right to challenge any sentence so

imposed, or the manner in which it was determined, in any

collateral attack, including but not limited to, a motion brought

under 28 U.S.C. § 2255.

21. The defendant reserves the right to contest in an

appeal or post-conviction proceeding any of the following:

a. Any punishment imposed in excess of the

statutory maximum;

b. Any punishment that constitutes an upward

departure from the guideline range; or

c. A claim of ineffective assistance of

counsel.

22. In addition, the defendant reserves the right to

petition the Court for resentencing pursuant to 18 U.S.C. § 3582

in the event of a future retroactive amendment to the Sentencing

Guidelines which would affect the defendant’s sentence.

(Id. at 1, 2-4, 4-5, 7-8 & 9-10 (emphasis in original)) Appearing before

Norwood’s signature line on page 12 of the agreement is this paragraph: “I

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2 The Factual Resume, which Norwood also signed, reads as follows:

The defendant, ANTWAND NORWOOD, admits the allegations of

Count 1 of the Superseding Indictment.

ELEMENTS OF THE OFFENSE

NORWOOD understands that in order to prove a violation of Title 21,

United States Code, Section 846, as charged in Count 1 of the Superseding

Indictment, the United States must prove:

1. That two or more persons in some way or manner, came to a

mutual understanding to unlawfully distribute controlled

substances.

2. That the defendant knowingly and willfully became a member of

such conspiracy.

OFFENSE CONDUCT

Defendant, ANTWAND NORWOOD, admits in open court and under

oath that the following statement is true and correct and constitutes evidence in

this case.

During the dates charged in the conspiracy count of the indictment, the

defendant ANTWAND NORWOOD did knowingly and willfully conspire and

agree with others named in the indictment to distribute and possess with the intent

to distribute crack cocaine in the 1400 block of Saint Phillips Street, Selma,

Alabama, and elsewhere. Agents from Alcohol, Tobacco, Firearms and

Explosives, in conjunction with officers from [the] Selma, Alabama police

9

have consulted with my counsel and fully understand all my rights with respect

to the offenses(s) charged in the Superseding Indictment pending against me.

I have read this Plea Agreement and carefully reviewed every part of it with

my attorney. I understand this agreement, and I voluntarily agree to it. I hereby

stipulate that the Factual Resume,2

 incorporated herein, is true and accurate in

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department began looking into illegal sales of narcotics in the 1400 block of St.

Phillips Street, Selma, Alabama in the early Spring of 2005. By use of pole

cameras located at each end of the block, informants, undercover purchases, and

“pick-offs” of drug purchasers, agents determined that NORWOOD and the

others named in the indictment worked together to sell various street level

amounts of crack cocaine, cocaine, and marijuana to individuals who either drove

by or walked up to meet with the various drug dealers. The group purchased their

drugs from outside sources. This investigation lasted up through August 2, 2006.

The results of search warrants executed on August 2, 2006 at the homes of the

defendant and others in the conspiracy corroborated the evidence received earlier.

The defendant agreed with others named in the indictment to distribute and

possess with intent to distribute in excess of 50 grams of cocaine base, also

known as crack cocaine within the Selma area; however, the United States and the

defendant do not have an agreement as to the exact amount of crack cocaine for

which the defendant shall be held accountable for purposes of relevant conduct,

and both parties are free to present their respective positions at sentencing for the

Court’s determination of this issue by the preponderance of evidence. 

(Doc. 298, FACTUAL RESUME, at 1-2)

10

every respect, and that had the matter proceeded to trial, the United States

could have proven the same beyond a reasonable doubt.” (Id.)

3. Two days later, on October 13, 2006, Norwood entered a

counseled guilty plea to Count One of the Superseding Indictment. (Doc. 685,

Guilty Plea Transcript; see also Doc. 300 (order on guilty plea))

THE COURT: Mr. Norwood, let me get you to step

forward, if you would, please, sir. Raise your right hand and

take an oath.

(The defendant was sworn.) 

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THE DEFENDANT : Yes.

THE COURT: All right. Would you state your full

name for the record, please, sir?

THE DEFENDANT: Antwand Norwood.

THE COURT: All right. Mr. Norwood, I need to

tell you that you’re now under oath and if you answer any of my

questions falsely, your answers may later be used against you in

another prosecution for perjury or for making a false statement.

Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: All right. What is your age? How

old are you?

THE DEFENDANT: 30 years old, sir. 

THE COURT: And how much education have you

completed?

THE DEFENDANT: I graduated from high school

and I have technical training from the military.

THE COURT: All right. Mr. Maddox, to the best of

your knowledge, is Mr. Norwood fully competent to enter a

valid plea today?

MR. MADDOX: Yes, sir, he is.

THE COURT: Mr. Norwood, have you ever been

treated for any mental illness or addiction to narcotic drugs of

any kind?

THE DEFENDANT: No, sir.

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THE COURT: Are you currently under the

influence of any drug or medication or alcoholic beverage of

any kind?

THE DEFENDANT: No, sir.

THE COURT: Have you received a copy of the

indictment in this case, had a full opportunity to read it and

review it with your attorney, and do you understand the

charge[s] contained in the indictment?

THE DEFENDANT: Yes, sir.

THE COURT: Is it necessary that I read the

indictment to you?

THE DEFENDANT: No, sir.

THE COURT: Are you fully satisfied with the

representation that you’ve received from your attorney in this

case and have you fully discussed with Mr. Maddox all of the

facts surrounding the charge in the case?

THE DEFENDANT: Yes, sir.

THE COURT: Now, I’ve been furnished with a

written plea agreement. [] This plea agreement appears to have

your signature at the end of the plea agreement and also at the

end of the factual resume. Did you in fact sign the document?

THE DEFENDANT: Yes, sir.

THE COURT: By signing this document, Mr.

Norwood, you’re acknowledging that you have received a copy

of it, you’ve read it, you’ve discussed it with your attorney, you

understand what’s contained in the document, and that you

agree with it; is that true?

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THE DEFENDANT : Yes, sir.

THE COURT: Have there been any promises made

to you by anyone or has anyone attempted in any way to force

you to plead guilty or to pressure you or threaten you in any

way?

THE DEFENDANT: No, sir .

THE COURT: Now, the penalties that could be

imposed if convicted of count one of the indictment are outlined

on page three of the plea agreement. And it states that if

convicted of count one you could receive a term of

imprisonment of 20 years to life, a fine not to exceed $8 million,

a supervised release term up to 10 years, and a mandatory

special assessment of $100. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Are you presently on probation,

parole, or supervised release in any other case that may be

subject to revocation?

THE DEFENDANT: No, sir.

THE COURT: Any restitution o[r] forfeiture to be

had in this case, Mr. Cherry?

MR. CHERRY: No, sir. Not in his particular case.

THE COURT: Mr. Norwood, if you’re convicted of

the charge in this case you may lose valuable rights, including

the right to vote, the right to hold public office, the right to

serve on a jury, and the right to possess any kind of firearm. Do

you understand that?

THE DEFENDANT: Yes, sir.

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THE COURT: And because it’s a drug offense, you

could lose certain federal benefits. Do you understand that?

THE DEFENDANT: Yes, sir.

MR. CHERRY: Your Honor, excuse me. I did make

a mistake. There is a forfeiture provision in the agreement. And

if we cannot agree on the amount by the time of the sentencing,

we would ask the Court to set an amount.

...

THE COURT: Then, Mr. Norwood, do you

understand if you plead guilty and you are found guilty, the

Court might require you to forfeit property to the United States?

THE DEFENDANT: Yes, sir.

THE COURT: Now, the United States Sentencing

Commission has issued guidelines for judges to consider in

determining a sentence in a criminal case. Have you and your

attorney talked about how those guidelines might affect your

case?

THE DEFENDANT: Yes, sir.

THE COURT: The way in which the sentencing

guidelines apply to your case might be affected by what you say

to the Court and to the probation officer. The Court will not be

able to determine an appropriate sentence for your case until

after a presentence report has been completed and you and the

United States have had an opportunity to challenge the facts

reported by the probation officer. Do you understand?

THE DEFENDANT: Yes, sir.

THE COURT: The sentence imposed might be

different from any estimate your attorney or anyone else might

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have given you. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: After it has been determined what

guideline applies to a case, the judge has the authority to impose

a sentence that is more severe or less severe than the sentence

called for in the guidelines. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Now, under some circumstances,

you and the United States may each have the right to appeal any

sentence the judge imposes. For instance, you can appeal your

conviction if you believe that your guilty plea was somehow

unlawful or involuntary or if there’s some other fundamental

defect in the proceedings not waived by your guilty plea. You

also have a statutory right to appeal your sentence under certain

circumstances, particularly if you think the sentence is contrary

to law. With few exceptions, any notice of appeal must be filed

within ten days of judgment being entered in your case. If

you’re unable to pay the cost of an appeal, you may apply for

leave to appeal in forma pauperis. Do you understand that?

THE DEFENDANT: Yes, sir. 

THE COURT: You also have a right to waive your

right to appeal. And I see by your plea agreement that you are

waiving your right to appeal any sentence imposed, with the

following exceptions. And that would be any punishment in

excess of the statutory maximum, any punishment constituting

an upward departure of the guideline range, and any claim of

ineffective assistance of counsel. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Parole has been abolished. If you’re

sentenced to prison, you will not be released on parole. Do you

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understand that?

THE DEFENDANT: Yes, sir.

THE COURT: If the sentence is more severe than

you expected or if I do not accept the sentencing

recommendation in your plea agreement, you will still be bound

by your plea. Even if you do not like the sentence imposed by

the Court, you will not be able to withdraw your plea. The time

to make that decision is now. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: You have the right to plead not

guilty to any offense charged against you and to persist in that

plea. You would then have the right to a trial by jury. During

that trial you would have the right to the assistance of counsel

for your defense and to the appointment of counsel if you could

not afford to hire one, the right to see and hear all of the

witnesses and to have your attorney cross-examined them, the

right to testify yourself or to decline to testify and remain silent,

and the right to have the Court issue subpoenas for any

witnesses you wish to call in your defense. At the trial you

would be presumed to be innocent and the United States would

have the burden of proving that you are guilty beyond a

reasonable doubt. Before you can be convicted, all 12 jurors

must be convinced that the United States has met that burden. If

you are found guilty after trial, you then have the right to appeal

that conviction to a higher court. And if you could not afford to

pay the cost of an appeal, the government would pay those costs

for you. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: If you plead guilty, however, and if

the Court accepts your plea, there will be no trial, you will be

waiving or giving up your right to a trial and all the other rights

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that I just described. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Now, contained in your plea

agreement is a factual resume. You’ve already told me that

you’ve read it, discussed it with your attorney, and that you

understand it and agree with it. But it also contains the elements

of the offense of the count of the indictment to which you are

pleading guilty. And count one of the indictment charges a

violation of Title 21, United States Code, Section 846. And the

elements of that offense are that two or more persons in some

way or manner came to a mutual understanding to unlawfully

distribute controlled substances and that you knowingly and

willfully became a member of that conspiracy. And in this case

the drug was crack cocaine; is that correct?

MR. CHERRY: Yes, sir.

THE COURT: All right. Do you understand that

those are the elements of the offense to which you are pleading

guilty?

THE DEFENDANT: Yes, sir.

THE COURT: And do you fully understand that if

there’s a trial in this case, the United States would be required

to present sufficient evidence to prove each of these elements

beyond a reasonable doubt?

THE DEFENDANT: Yes, sir.

THE COURT: Now, included in the factual resume

is a statement of offense conduct. Did you in fact commit the

acts and do the things that you have admitted to in this statement

of offense conduct?

THE DEFENDANT: Yes, sir.

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THE COURT: All right. And I see that you are

reserving the right to argue the weight of the drugs at the time

of sentencing; is that right?

MR. MADDOX: Yes, sir. 

THE COURT: All right. . . . Then I find that the

facts and acts to which you have admitted support a violation of

the charge contained in count one of the indictment. How do

you now plead to the charge in count one of the indictment,

guilty or not guilty?

THE DEFENDANT: Guilty.

THE COURT: And are you pleading guilty of your

own free will because you are guilty?

THE DEFENDANT: Yes, sir.

THE COURT: Mr. Maddox, are you aware of any

reasons that the Court should not accept Mr. Norwood’s guilty

plea at this time?

MR. MADDOX: No, sir, I’m not.

THE COURT: All right. Then it is the finding of

this Court in the case of United States versus Antwand Norwood

that you are fully competent and capable of entering an

informed plea, that you are aware of the nature of the charge and

the consequences of your plea, and that your plea of guilty is a

knowing and voluntary plea supported by an independent basis

in fact containing each of the essential elements of the offense.

Your plea is therefore accepted and you are now adjudged guilty

of that offense.

(Id. at 2-5 & 6-11)

4. The Presentence Investigation Report was initially prepared by

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the Probation Office on December 22, 2006 and filed as a sealed document on

March 30, 2007. (See Doc. 483) The defendant interposed the following

objections to the Presentence Report:

1. Defendant objects to the alias of “Poo Pie” alleged

in paragraphs 1, 7, and any subsequent paragraphs. This is an

alias of Defendant’s brother and the defendant does not respond

to that alias.

2. Defendant objects to the facts alleged in paragraph

5 to the extent that he doubts that an actual profit of $5000.00 to

$8000.00 occurred in the area described.

3. Defendant objects to paragraphs 7, 15, 26, 27, and

56 to the extent that they allege that Defendant possessed

firearms. Specifically, as to paragraph 56, it should be noted that

the firearm described therein belonged to and was possessed by

Herman Craig, who has already entered a plea to possession of

same and has been sentenced. Defendant further objects to

paragraph 69 upon the grounds that he did not possess a firearm

in his participation and did not knowingly associate with those

possessing firearms at the time of his participation.

4. Defendant objects to paragraphs 62 (calculation of

quantity of cocaine base), 68, 73, 74, 77, 130, and all others

relying on such calculation. Defendant’s participation in the

“conspiracy” was limited to activities with a limited number of

individuals and began more than five years after the beginning

of the conspiracy. The indictment alleges that the conspiracy

began in 1999. Defendant began serving a prison sentence (time

both in the Dallas County Jail and state prisons) on July 12,

2000. He was incarcerated until August 12, 2003. Upon release

from prison, he resided in Montgomery, Alabama with his

mother, returning to Selma in March, 2004. His limited

participation in the overall conspiracy began after that time.

Defendant believes that he should be held accountable for 250

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3 The United States interposed “no objections to the calculated Offense Level,

Criminal History, and resulting advisory Guideline Range.” (Doc. 446)

20

grams of cocaine base, which he believes is an accurate

representation of his participation, based upon discovery, with

the co-conspirators (some of whom he did no business with).

This would place his offense level at 34. Defendant recognizes,

however, that U.S.S.G. 4B1.1 might require a base level of 37.

Defendant thus believes that with that base offense level, no

increase for firearms, and adjustments for acceptance of

responsibility, his Total Offense Level should be 34.

5. Defendant objects to paragraph 107 in that it

seems to indicate that the defendant actually moved from Selma

to Montgomery in August, 2003. Although his “official

residence” might have been listed as Selma up until August

2003, [] he was incarcerated until that time and he lived in

Montgomery from his release until approximately March, 2004.

6. Defendant objects to paragraphs 89, 90, 91 and

paragraphs and computations relying on those calculations

because there is no listed date for the beginning of Defendant’s

participation in the conspiracy. Defendant[] does not recall

participating in transactions involving any of his co-indictees

until after August, 2005. The pole cameras referenced in the

Factual Resume signed by Defendant failed to show Defendant

participating in the street activities on which most co-indictees

are shown. Defendant contends that he should have 9 criminal

history points. 

(Doc. 481, at 1-2)3

5. Sentencing was originally scheduled for February 6, 2007 in this

case (see Doc. 300) but due to numerous requests for continuation of

sentencing, from both the government and the defendant (Docs. 375, 488, 491,

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523, 549; see also Docs. 377, 492, 524 & 550 (orders granting continuances)),

and a motion to determine conflict of interest and motion to withdraw filed by

Norwood’s retained counsel, Bruce Maddox, Esquire (Docs. 584-585),

petitioner’s sentencing hearing did not take place until March 25, 2008

(compare Doc. 601 (order rescheduling sentencing hearing to March 25, 2008)

with Doc. 686 (transcript of March 25, 2008 sentencing hearing)). Prior to the

sentencing hearing, Norwood’s retained counsel was allowed to withdraw

(Doc. 588) and Cindy W. Powell, Esquire was appointed to represent the

defendant at sentencing (Doc. 589 (order of appointment dated February 7,

2008)). 

6. On February 1, 2008, the government filed a motion for

downward departure due to Norwood’s substantial assistance. (Doc. 581) 

3. The Defendant’s present adjusted offense level on

Count One[] is 35[] (per the U.S.S.G. guideline adjustments of

November 1, 2007) within the advisory sentencing guidelines,

subject to the findings of the Court, with a criminal history

category of VI, for a guideline range of 292 to 365 months. The

statutory minimum sentence is 240 months pursuant to 21

U.S.C. § 841(b)(1)(A) enhanced. The United States respectfully

moves the Court to consider a downward departure of five (5)

levels on Count One, to an adjusted offense level of 30, and a

sentencing guideline range of 168 to 210 months, with a specific

recommendation of 176 months to serve due to the Defendant’s

substantial assistance and for such other factors as the Court

may consider.

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 21 of 46
22

(Id. at 1-2)

7. During the sentencing hearing on March 25, 2008, the following

occurred:

THE COURT: All right. Ms. Powell, have you and

Mr. Norwood been over the presentence investigation report? 

MS. POWELL: Yes, ma’am, we have.

THE COURT: All right. A number of objections

were filed by his former counsel, and I need to know how many,

if any, of those are still outstanding.

MS. POWELL: Judge, in light of the 5K motion

filed by the government asking that he receive a downward

departure, we’re going to withdraw those objections at this time.

THE COURT: All right. Based upon that, I’m going

to make a finding as to the guideline levels under the amended

crack guideline levels. The presentence report reflects the old

calculations. But it’s my finding that the total offense level in

this case is 35, with a criminal history category of VI.

MS. POWELL: Yes, ma’am.

THE COURT: The base offense level . . . is 36,

with the two-level enhancement for the firearm, adjusted offense

level 38, three off for acceptance of responsibility is 35, with a

criminal history of VI.

MS. POWELL: Yes, ma’am.

THE COURT: All right. I’ll hear from you. Well,

let me hear from Mr. Cherry first on his motion.

MR. CHERRY: Yes, Your Honor. Please the Court,

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 22 of 46
23

I think this motion pretty well lays out our position. I do want to

say that at the sentencing of Guerrin Saintil, who was the

supplier for these folks, we did proffer Mr. Norwood, he did

give us a full statement of his and some others’ involvements.

Through the lack of communication, he was not allowed to

testify at the sentencing of Saintil, which was not his fault. But

he was ready, willing, and able to testify.

THE COURT: All right. Do you have anything you

want to add to that, Ms. Powell?

MS. POWELL: Your Honor, in light of Mr.

Norwood’s cooperation, and in that the government is asking

you to downwardly depart based upon the extent of Mr.

Norwood’s cooperation – and as Mr. Cherry said, at Mr.

Saintil’s sentencing Mr. Norwood was supposed to be brought

here to testify at that sentencing, and by some error he was not

brought from the jail where he was incarcerated. I believe it was

at Perry County at that time. That’s where he’s presently

housed. But he stood ready to testify against Mr. Saintil.

 What we would ask Your Honor is, based upon his full

cooperation and full disclosure of his involvement in the St.

Phillips Boys conspiracy, that you would give him 50 percent

off the low end of the guidelines, which would be . . . I think

146 months.

THE COURT: All right. Now, I understand the

government’s recommending 176 months; is that correct?

MR. CHERRY: Yes, Your Honor.

THE COURT: Otherwise the guidelines are 292 to

365 months.

MR. CHERRY: That’s correct.

THE COURT: The motion doesn’t specifically say

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 23 of 46
24

it, but I assume that it is pursuant to 3553(e).

MR. CHERRY: It is, Your Honor. Yes, ma’am.

THE COURT: All right. Mr. Norwood, do you have

anything that you would like to say before I impose sentence in

your case?

THE DEFENDANT: First of all, I would like to

apologize to the Court and everyone involved for my

participation in the, you know, conspiracy and that I just, you

know, regret what I have done. But since I’ve been incarcerated

these 19 months, I have, you know what I’m saying, had time to

sit back and reflect on, you know, my actions and I realize that,

you know, it was a big mistake. . . . I don’t know if you received

my letter that I wrote you. . . . I stated [i]n the letter, I do attend

church and I had just attended church and . . . in prayer at altar

call . . . I was trying to make a change in my life. And later on

that week . . . I was picked up. So I look at this as God’s hand .

. . giving me an opportunity to change my life. Because there’s

a lot of people, you know, that aren’t presented with an

opportunity, where, you know, drugs normally lead to jail or

death. So it hasn’t led me to death. It’s led me to jail. So I guess

this is God’s way of giving me an opportunity to change my life

and I just would ask that, you know, you would have a little

mercy on me and allow me to have the 12 years. So I have two

eight-year-old twin boys that I’m going to be away from them

for a little while, and I would like to get back to them as soon as

possible. And I also would like to be able to have drug treatment

while I’m also being incarcerated. And I just throw myself on

the mercy of the Court at this time.

THE COURT: All right. Well, I’ve considered the

government’s motion and I think it’s well taken and I intend to

grant the government’s motion.

I have also considered the sentencing guidelines and I

find that, with the motion for downward departure, the

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 24 of 46
25

guidelines provide for an appropriate sentence in this case and

the sentence I give is reasonable, considering the statutory

purposes of sentencing, which I’ve also considered.

I’m now going to state the sentence I intend to impose

and I’ll allow counsel to make legal objections to it before

imposition of the sentence. 

Pursuant to the Sentencing Reform Act of 1984, it is the

judgment of the Court that the defendant, Antwand Norwood,

is hereby committed to the custody of the United States Bureau

of Prisons to be imprisoned for a term of 176 months as to count

one. The Court recommends that the defendant be imprisoned at

an institution where a residential comprehensive substance

abuse treatment program is available.

Upon release from imprisonment, the defendant shall be

placed on supervised release for a term of 10 years on count

one. 

Within 72 hours of release from custody of the Bureau of

Prisons, the defendant shall report in person to the probation

office in the district to which he’s released. While on supervised

release, the defendant shall not commit any federal, state, or

local crimes, he shall be prohibited from possessing a firearm or

other dangerous device and shall not possess a controlled

substance. In addition, the defendant shall comply with the

standard conditions of supervised release as recommended by

the United States Sentencing Commission and on record with

this Court. 

The Court orders that the defendant also comply with the

following special condition of supervised release: He shall

participate in a program of testing and treatment for drug and/or

alcohol abuse as directed by the probation office.

The Court finds that the defendant does not have the

ability to pay a fine, and therefore a fine is not imposed.

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 25 of 46
26

As I indicated, I find that the range, the guideline range,

with the motion for downward departure is appropriate to the

facts and circumstances of this case and the sentence imposed is

reasonable, given the statutory purposes of sentencing.

The sentence addresses the seriousness of the offense and

the sentencing objectives of punishment, deterrence, and

incapacitation. 

It is ordered that the defendant pay a special assessment

in the amount of $100 on count one, which shall be due

immediately.

Now, having stated the sentence I intend to impose, are

there any legal objections to it?

MS. POWELL: No, Your Honor.

MR. CHERRY: None Your Honor.

THE COURT: I hereby impose the sentence as

previously stated.

Now, Mr. Norwood, you can appeal your conviction if

you believe that your guilty plea was unlawful or involuntary or

if there is some other fundamental defect in the proceeding that

was not waived by your guilty plea. 

You also have a statutory right to appeal the sentence

itself in certain circumstances, particularly if you think the

sentence is contrary to the law. However, you entered into a plea

agreement which waives certain of your rights to appeal the

sentence itself. Such waivers are generally enforceable. But if

you believe the waiver to be unenforceable, you can test that

theory in the appellate Court. 

If you do decide to appeal, you must do so within 10 days

of entry of judgment in this case and Ms. Powell could file that

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 26 of 46
27

notice for you.

Now, counts 25 and 28 are to be dismissed; is that

correct?

MR. CHERRY: Yes, Your Honor.

THE COURT: What about the forfeiture count?

MR. CHERRY: The forfeiture would not apply to

this defendant. []

THE COURT: That count is dismissed as well. And

we’re adjourned.

(Doc. 686, at 2-8; see also Doc. 614 (judgment in a criminal case entered April

8, 2008))

8. Norwood did not appeal his conviction or sentence. (See Docket

Sheet)

9. On April 4, 2009, Norwood filed the present collateral attack on

his conviction and sentence pursuant to 28 U.S.C. § 2255. (See Doc. 674, at 6

(date petitioner signed the petition)) Therein, petitioner contends that he was

denied the effective assistance of counsel. (See id.) Norwood alleges the

following instances of ineffective assistance of counsel: (1) his attorney failed

to file an appeal despite his repeated requests that an appeal be filed; (2) his

attorney failed to object to the Assistant United States Attorney recommending

a sentence above the low end of the guidelines when the plea agreement stated

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 27 of 46
28

the government would recommend a low-end sentence; (3) his attorney failed

to object to the career-criminal enhancements based upon his prior felony

convictions which did not qualify as predicate offenses thereby causing him

to be sentenced using the wrong criminal history category; and (4) his attorney

failed to make any objections to the pre-sentence report and, instead, withdrew

objections asserted by previous counsel. (Doc. 674, at 4)

10. The United States filed its response on July 29, 2009, and therein

agreed that an evidentiary hearing was necessary with respect to Norwood’s

first claim of ineffective assistance of counsel. (Doc. 699)

11. Petitioner, through appointed counsel, filed an amended petition

on December 10, 2009. (Doc. 712) Therein, petitioner raises the following

additional claims: (1) his guideline range was determined without considering

a variance under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005) and an adjustment of the guidelines under Kimbrough v.

United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); and (2) his

attorney provided ineffective assistance in failing to argue for a reduced

sentence/variance pursuant to Booker and Kimbrough.

12. An evidentiary hearing was held in this matter on December 17,

2009, at which the undersigned heard the testimony of petitioner, Antwand

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 28 of 46
4 That Norwood is a career offender is clear from the record and the sentencing

guidelines. Section 4A1.1 of the United States Sentencing Guidelines provides that in

determining criminal history category three points are to be added to each prior sentence of

imprisonment exceeding one year and one month. Moreover, § 4A1.2 provides the following

instructions with respect to computing criminal history:

(a) Prior Sentence

(1) The term “prior sentence” means any sentence

previously imposed upon adjudication of guilt, whether by guilty

plea, trial, or plea of nolo contendere, for conduct not part of the

instant offense.

(2) If the defendant has multiple prior sentences, determine

whether those sentences are counted separately or as a single

sentence. Prior sentences always are counted separately if the

sentences were imposed for offenses that were separated by an

intervening arrest (i.e., the defendant is arrested for the first

offense prior to committing the second offense). If there is no

intervening arrest, prior sentences are counted separately unless

(A) the sentences resulted from offenses contained in the same

charging instrument; or (B) the sentences were imposed on the

same day. Count any prior sentence covered by (A) or (B) as a

single sentence.

...

(3) A conviction for which the imposition or execution

29

Norwood, and the attorney who represented him during his sentencing

proceeding on August 25, 2008, Cindy Powell, Esquire. Prior to the taking of

testimony and in an effort to pare down the issues, counsel for Norwood, with

petitioner’s consent, withdrew his claims that Powell was ineffective in failing

to challenge the drug quantity set forth in the pre-sentence report and for

failing to challenge that he was a career offender.4

 Accordingly, this Court is

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 29 of 46
of sentence was totally suspended or stayed shall be counted as a

prior sentence under §4A1.1(c).

...

(b) Sentence of Imprisonment Defined

(1) The term “sentence of imprisonment” means a sentence

of incarceration and refers to the maximum sentence imposed.

(2) If part of a sentence of imprisonment is suspended,

“sentence of imprisonment” refers only to the portion that was not

suspended.

...

(c) Applicable Time Period

(1) Any prior sentence of imprisonment exceeding one year

and one month that was imposed within fifteen years of the

defendant’s commencement of the instant offense is counted. Also

count any prior sentence of imprisonment exceeding one year and

one month, whenever imposed, that resulted in the defendant being

incarcerated during any part of such fifteen-year period.

(2) Any other prior sentence that was imposed within ten

years of the defendant’s commencement of the instant offense is

counted.

(3) Any prior sentence not within the time periods specified

above is not counted.

...

(k) Revocations of Probation, Parole, Mandatory Release, or

Supervised Release

(1) In the case of a prior revocation of probation, parole,

supervised release, special parole, or mandatory release, add the

original term of imprisonment to any term of imprisonment

30

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 30 of 46
imposed upon revocation. The resulting total is used to compute

the criminal history points for §4A1.1(a), (b), or (c), as applicable.

(2) (A) Revocation of probation, parole, supervised

release, special parole, or mandatory release may

affect the points for §4A1.1(e) in respect to the

recency of last release from confinement. 

Id. (emphasis in original). Finally, the sentencing guidelines categorizes a defendant as a career

offender if “(1) the defendant was at least eighteen years old at the time the defendant committed

the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a

crime of violence or a controlled substance offense; and (3) the defendant has at least two prior

felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G.

§4B1.1(a). Even petitioner’s retained attorney admitted Norwood has nine (9) criminal history

points (Doc. 481, at ¶ 6) attributable to his three prior felony convictions (compare id. with Doc.

483, ¶¶ 85-87). Because at least two of these felony convictions were controlled substance

offenses (Doc. 483, ¶¶ 85-86) Norwood was a career offender, U.S.S.G. §4B1.1(a), thereby

making his criminal history category VI, U.S.S.G. §4B1.1(b).

31

left to consider Norwood’s Kimbrough claim and his claim that his attorney

provided ineffective assistance in (1) failing to file an appeal; (2) failing to

object to the Assistant United States Attorney recommending a sentence above

the low end of the guidelines when the plea agreement stated the government

would recommend a low-end sentence; and (3) failing to argue for a reduced

sentence/variance pursuant to Booker and Kimbrough.

CONCLUSIONS OF LAW

1. 28 U.S.C. § 2255 reads, in relevant part, as follows: “A prisoner

in custody under sentence of a court established by Act of Congress claiming

the right to be released upon the ground that the sentence was imposed in

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 31 of 46
5 Once a criminal defendant enters a guilty plea, he waives all non-jurisdictional

challenges to the conviction’s constitutionality and only an attack on the voluntary and knowing

nature of the plea can be raised. See McMann v. Richardson, 397 U.S. 759, 772, 90 S.Ct. 1441,

1449, 25 L.Ed.2d 763 (1970). Stated differently, “a voluntary and intelligent plea made by an

accused person, who has been advised by competent counsel, may not be collaterally attacked.” 

Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546-2547, 81 L.Ed.2d 437 (1984)

(emphasis supplied). Therefore, when a § 2255 motion is filed collaterally challenging

convictions obtained pursuant to guilty pleas, “the inquiry is ordinarily confined to whether the

underlying plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569,

109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989).

32

violation of the Constitution or laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in excess

of the maximum authorized by law, or is otherwise subject to collateral attack,

may move the court which imposed the sentence to vacate, set aside or correct

the sentence.” 

2. In this instance, Norwood contends, primarily, that

constitutionally ineffective assistance of counsel entitles him to the relief

afforded by 28 U.S.C. § 2255.5

 In order to establish a claim of ineffective

assistance of counsel, a petitioner is required to show (1) that his attorney’s

representation fell below “an objective standard of reasonableness” and (2)

that a reasonable probability exists that but for counsel’s unprofessional

conduct, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The

petitioner bears the burden of proof on the ‘performance’ prong as well as the

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 32 of 46
6 It is proper in considering claims made by a federal prisoner under § 2255 to look

for guidance from cases discussing claims raised by state prisoners under 28 U.S.C. § 2254. See

Hagins v. United States, 267 F.3d 1202, 1205 (11th Cir. 2001) (citing Holladay v. Haley, 209

F.3d 1243 (11th Cir. 2000)), cert. denied, 537 U.S. 1022, 123 S.Ct. 545, 154 L.Ed.2d 432

(2002).

7 “When analyzing ineffective-assistance claims, reviewing courts must indulge a

strong presumption that counsel’s conduct fell within the wide range of reasonably professional

assistance.” Smith v. Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999) (citations omitted).

33

‘prejudice’ prong of a Strickland claim, and both prongs must be proved to

prevail.” Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001), cert.

denied sub nom. Johnson v. Nagle, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d

208 (2002).6

 The Strickland v. Washington standard for evaluating claims of

ineffective assistance of counsel was held applicable to guilty pleas in Hill v.

Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). 

To succeed on such a claim, “the defendant must show that

counsel’s performance was deficient. This requires showing

that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).7

 In addition,

the defendant must establish that “counsel’s constitutionally

ineffective performance affected the outcome of the plea

process.” Hill, 474 U.S. at 59, 106 S.Ct. at 370. In other words,

. . . [a petitioner] “must show that there is a reasonable

probability that, but for counsel’s errors, he would . . . have

pleaded [not] guilty and would . . . have insisted on going to

trial.” Hill, 474 U.S. at 59, 106 S.Ct. at 370.

Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995) (footnote, brackets

and ellipses added), cert. denied sub nom. Coulter v. Jones, 516 U.S. 1122,

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 33 of 46
8 “‘[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.’” Johnson, supra, 256 F.3d at 1176

(citation omitted).

34

116 S.Ct. 934, 133 L.Ed.2d 860 (1996).8 Of course, in the context of

sentencing following entry of a guilty plea the court simply considers whether

petitioner has established, in accordance with Strickland, supra, that his

attorney was deficient and that he was prejudiced by this deficiency in

performance. See, e.g., Myers v. United States, 2009 WL 1505638, *1 (W.D.

Pa. 2009) (“In order for petitioner to succeed on an ineffective assistance of

counsel claim, he must prove: (1) that his counsel was deficient; and (2) that

he was prejudiced by his counsel’s deficiency.”). 

3. When applying the Strickland standard, it is clear that courts “are

free to dispose of ineffectiveness claims on either of its two grounds.” Oats

v. Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998) (citation omitted), cert.

denied sub nom. Oates v. Moore, 527 U.S. 1008, 119 S.Ct. 2347, 144 L.Ed.2d

243 (1999); see also Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir.

2004) (“[O]nce a court decides that one of the requisite showings has not been

made it need not decide whether the other one has been.”). 

4. Petitioner’s first claim of ineffective assistance of counsel is that

counsel was deficient in failing to appeal his sentence. Norwood testified that

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 34 of 46
35

immediately following his sentencing proceeding, he spoke to Powell in one

of the holding cells in the courthouse and informed her that he was not

satisfied with his sentence and wanted to appeal. Powell confirmed that the

two spoke, acknowledged that Norwood was hoping he would receive a lower

sentence, that is, a 50% reduction in the low-end of the guidelines to 146

months, but stated that petitioner never instructed her to appeal after she told

him that the sentence he received of 176 months was a legal sentence within

the guidelines and presented no appealable issues. In light of the conflicting

testimony and petitioner’s failure to come forward with any evidence–letters,

telephone records, etc.– which would corroborate that he instructed Powell to

file an appeal, the undersigned credits Powell’s version of events over that of

Norwood and finds that petitioner did not instruct/request his attorney to file

an appeal. Accordingly, Powell’s representation of Norwood in this regard was

not deficient. See, e.g., Smith v. United States, 522 F.Supp.2d 233, 238 (D.

D.C. 2007) (“[T]he Court finds that petitioner did not ask his counsel to file an

appeal, and therefore, counsel’s representation of defendant was not

ineffective.”); cf. Gomez-Diaz v. United States, 433 F.3d 788, 791-792 (11th

Cir. 2005) (“The [Supreme] Court [in Roe v. Flores-Ortega, 528 U.S. 470, 120

S.Ct. 1029, 145 L.Ed.2d 985 (2000)] first reaffirmed the well-settled rule that

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 35 of 46
9 In other words, paragraphs 17 and 18 of the plea agreement are separate and

distinct paragraphs. Pursuant to paragraph 17, the government agreed to recommend a sentence

36

an attorney who fails to file an appeal on behalf of a client who specifically

requests it acts in a professionally unreasonable manner per se. The Court went

on to hold that, even if a client has not made a specific request of his attorney

to file an appeal, a court must inquire whether the attorney consulted with the

client regarding the advantages and disadvantages of appealing and made a

reasonable effort to determine the client’s wishes. If so, the attorney has only

acted unreasonably if he has ignored the client’s wishes to appeal the case.”

(internal citations omitted; emphasis supplied)). 

5. Norwood’s contention that his trial attorney was ineffective for

failing to object to the prosecutor’s failure to recommend a low-end sentence

is baseless. The plea agreement specifically stated that the government would

recommend to the Court that Norwood be sentenced at the low end of the

applicable advisory guideline range as determined by the Court. In this case,

that applicable advisory guideline range was 292 to 365 months and, of course,

petitioner was not sentenced within that range because the prosecutor moved

for a downward departure which was granted by the Court. Therefore, the

obligation to recommend a low-end sentence obviously evaporated given the

motion for a downward departure.9

 As it was, the government still

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 36 of 46
at the low end of the advisory guideline range, which, in this case, would have been 292 months.

However, pursuant to paragraph 18, the government agreed that if petitioner cooperated and it

determined such cooperation to be of substantial assistance it would move for downward

departure. The only relationship between the two paragraphs is the government’s concession in

paragraph 18 that if it determined Norwood’s cooperation did not amount to substantial

assistance it would nonetheless recommend a sentence at the low end of the applicable advisory

guideline range, that is, 292 months. Thus, nothing about this agreement can be read as

establishing that the government agreed to a 50% reduction in the low-end advisory guideline

range to 146 months, as argued by Norwood. See fn 10, infra.

10 It became apparent during the evidentiary hearing that Norwood felt that the

government should have recommended a 50% reduction in his low-end guideline range of 292

months thereby rendering a sentence of 146 months. It is clear to the undersigned that the

government never agreed to recommend a 50% reduction in the low-end guideline amount of

292 months; instead all the plea agreement provided was that the government would, in the first

instance, recommend a low-end sentence based upon the advisory range rendered by the

guidelines (i.e., 292 months) and, second, that it would move for downward departure if

petitioner provided substantial assistance. Norwood’s confusion regarding what the plea

agreement required the government to recommend in terms of sentencing stems from the fact

that the government’s motion for downward departure allowed petitioner’s attorney to argue for

a 50% reduction in the low-end guideline range. This is exactly what petitioner’s attorney did at

sentencing, requesting that the court sentence her client to 146 months, as opposed to the 176

months recommended by the government. Powell was not deficient in failing to object to the

government’s failure to recommend a 146-month sentence because the government never agreed

to recommend such sentence. 

37

recommended a sentence at the low-end of the downward departure range (168

to 210 months) inasmuch as Norwood received a 176-month sentence.

Accordingly, petitioner’s argument in this regard is baseless.10

6. Petitioner’s final claim of ineffective assistance of counsel is his

argument that Powell erred in failing to argue for a reduced sentence/variance

pursuant to United States v. Booker, supra, and United States v. Kimbrough,

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 37 of 46
11 Petitioner also makes a substantive Booker/Kimbrough claim as he contends that

his guideline range was determined by the Court without consideration of a variance under

Booker and an adjustment of the guidelines under Kimbrough. In accordance with paragraphs

20-21 of the plea agreement, Norwood waived his “right to challenge any sentence . . . imposed[]

or the manner in which it was determined, in any collateral attack, including . . . a motion

brought under 28 U.S.C. § 2255[,]” except: “a. Any punishment imposed in excess of the

statutory maximum; b. Any punishment that constitutes an upward departure from the guideline

range; or c. A claim of ineffective assistance of counsel.” (Doc. 298, at ¶¶ 20 & 21) Because

there is no argument, nor can there be any, that petitioner’s punishment was in excess of the

statutory maximum-240 months in this case–or that his punishment constituted an upward

departure from the guideline range, and it being clear that the Court discussed the foregoing

waiver provisions with petitioner (Doc. 685, at 7-8), the undersigned concludes that petitioner

has waived his right to challenge his sentence in accordance with Booker and Kimbrough via a §

2255 motion, compare Williams v. United States, 396 F.3d 1340, 1341 (11th Cir.) (“It is wellsettled that sentence-appeal waivers are valid if made knowingly and voluntarily. In the context

of a direct appeal, we have held that for a sentence-appeal waiver to be enforceable, ‘[t]he

government must show that either (1) the district court specifically questioned the defendant

concerning the sentence appeal waiver during the [plea] colloquy, or (2) it is manifestly clear

from the record that the defendant otherwise understood the full significance of the waiver.’”

(internal citations omitted)), cert. denied, 546 U.S. 902, 126 S.Ct. 246, 163 L.Ed.2d 226 (2005)

with Mendoza v. United States, 2009 WL 3317170, *3 n.2 (S.D. Ga. 2009) (“By ‘appeal,’ this

Court here refers to the right to ‘appeal or contest, directly or collaterally, [a] sentence.’

Moreover, case law concerning waiver of a direct appeal has also been applied to waiver of the

right to collateral proceedings.”) (internal citations omitted)), leaving as his only available attack

in this regard the ineffective assistance of counsel claim. 

38

supra.

11 In Booker, the Supreme Court held that the sentencing guidelines are

advisory, id. at 245, 125 S.Ct. at 757, and reaffirmed its holding in Apprendi

v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) that

“[a]ny fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea

of guilty or a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.” Id. at 244, 120 S.Ct. at 756. Three years later

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39

in Kimbrough, the Supreme Court, following Booker, held the cocaine

guidelines to be advisory only. 552 U.S. at 91, 128 S.Ct. at 564. “A district

judge must include the Guidelines range in the array of factors warranting

consideration. The judge may determine, however, that, in the particular case,

a within-Guidelines sentence is ‘greater than necessary’ to serve the objectives

of sentencing. In making that determination, the judge may consider the

disparity between the Guidelines’ treatment of crack and powder cocaine

offenses.” Id. (emphasis supplied; internal citation omitted); see also id. at

104-105, 128 S.Ct. at 572 (“If the 1986 Act does not require the Commission

to adhere to the Act’s method for determining LSD weights, it does not require

the Commission–or, after Booker, sentencing courts–to adhere to the 100-to-1

ratio for crack cocaine quantities other than those that trigger the statutory

mandatory minimum sentences.”). In other words, in accordance with

Kimbrough “district courts are entitled to vary from the crack-cocaine

guidelines in a mine-run case where there are no ‘particular circumstances’

that would otherwise justify a variance from the Guidelines’ sentencing

range.” Spears v. United States, U.S. , , 129 S.Ct. 840, 844, 172

L.Ed.2d 596 (2009). 

7. It is within the context of this legal backdrop that the

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40

undersigned considers petitioner’s final claim of ineffective assistance of

counsel. First, there is no argument in this case, nor can there be, that this

Court treated the sentencing guidelines as mandatory. Instead, the plea

agreement made clear to Norwood the advisory nature of the guidelines (Doc.

298, ¶ 11) and the sentencing transcript clearly establishes that this Court, in

line with Booker and Kimbrough, considered the guidelines range in the array

of factors warranting consideration (see Doc. 686, at 5-6 & 7 (“I have also

considered the sentencing guidelines and I find that, with the motion for

downward departure, the guidelines provide for an appropriate sentence in this

case and the sentence I give is reasonable, considering the statutory purposes

of sentencing, which I’ve also considered. . . . As I indicated, I find that the

range, the guideline range, with the motion for downward departure is

appropriate to the facts and circumstances of this case and the sentence

imposed is reasonable, given the statutory purposes of sentencing. The

sentence addresses the seriousness of the offense and the sentencing objectives

of punishment, deterrence, and incapacitation.”)) While it may well be true

that this Court did not consider whether the “within-Guidelines sentence is

‘greater than necessary to serve the objectives of sentencing[,]’” Kimbrough,

552 U.S. at 91, 128 S.Ct. at 564; cf. United States v. Warren, 2008 WL

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41

4925833, *1 (11th Cir. 2008) (recognizing that district courts have “authority

to impose a downward variance due to the unwarranted disparity created

among defendants convicted of crack-cocaine offenses and powder-cocaine

offenses”), such a determination is not mandatory, see Kimbrough, supra, at

91, 128 S.Ct. at 564. In other words, “the Supreme Court in Kimbrough did not

hold that a sentencing court must disregard the guideline range.” Myers, supra,

*2 (emphasis in original). In fact, even in United States v. Gully, 619

F.Supp.2d 633, 644 (N.D. Iowa 2009), a case cited prominently by petitioner

in his amended § 2255 motion, the Court found that “the appropriate method

is to calculate the guideline range under existing law (i.e., using the 100:1 ratio

and any appropriate guideline adjustments or departures), but then to calculate

an alternative guideline range using a 1:1 ratio, and to use or vary from that

alternative guideline range depending upon the court’s consideration of the 18

U.S.C. § 3553(a) factors to account, for example, for the defendant’s history

of violence, the presence of firearms, or the defendant’s recidivism.”

Therefore, as Gully clearly recognizes, there is nothing which prohibits a court,

as this Court did in this case, from calculating the guideline range using the

100:1 ratio and then granting the government’s motion for downward

departure. More important than the fact that this sentencing procedure is

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 41 of 46
12 It is clear from Powell’s testimony that she made a strategic decision not to

request a Kimbrough variance, having no knowledge of a case in this district in which the court

applied a different ratio, and instead focused on the government’s motion for downward

departure because this opened the door for her to argue in favor of a 50% reduction in the lowend sentencing range (292 months) and thereby request a 146-month term of imprisonment for

her client.

13 Norwood’s testimony at his § 2255 evidentiary hearing that he knew this Court

was going to impose a 176-month sentence after the government made that recommendation in

its motion for downward departure on February 1, 2008, is but further confirmation that the

result of his sentencing hearing would not have been different had his attorney requested a

variance under Kimbrough.

42

allowable, petitioner has not pointed to any case in this district in which this

Court has deviated from the 100:1 ratio, followed by guideline adjustments or

departures, in favor of a different ratio. Accordingly, the undersigned can find

neither that petitioner’s attorney was deficient in failing to argue for a variance

in line with Kimbrough12 or that there is a reasonable probability that the result

of his sentencing proceeding would have been different had such a variance

been requested.13

8. In consideration of the foregoing, the Magistrate Judge

recommends that the Court deny Norwood’s motion to vacate, set aside or

correct his sentence under 28 U.S.C. § 2255. 

9. Pursuant to Rule 11(a) of the Rules Governing § 2255

Proceedings, the undersigned recommends that a certificate of appealability in

this case be denied. 28 U.S.C. foll. § 2255, Rule 11(a) (“The district court must

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43

issue or deny a certificate of appealability when it enters a final order adverse

to the applicant.”). The habeas corpus statute makes clear that an applicant is

entitled to appeal a district court’s denial of his habeas corpus petition only

where a circuit justice or judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1). A certificate of appealability may issue only where “the

applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2243(c)(2). Where, as here, a habeas petition is being

denied, in part, on procedural grounds without reaching the merits of an

underlying constitutional claim, “a COA should issue [only] when the prisoner

shows . . . that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was correct in its

procedural ruling[,]” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595,

1604, 146 L.Ed.2d 542 (2000), and, in part, on the merits of an underlying

constitutional claim, a COA should issue only when the petitioner

demonstrates “that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong[,]” id. See also id. at 483-484,

120 S.Ct. at 1603-1604 (“To obtain a COA under § 2253(c), a habeas prisoner

must make a substantial showing of the denial of a constitutional right, a

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44

demonstration that, under Barefoot, includes showing that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were

‘“adequate to deserve encouragement to proceed further.”’”); see Miller-El v.

Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003)

(“Under the controlling standard, a petitioner must ‘sho[w] that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented were

“adequate to deserve encouragement to proceed further.”’”). Because, as

previously established, appeal waivers are valid, a reasonable jurist could not

conclude either that this Court is in error in not addressing the merits of

petitioner’s substantive Kimbrough variance claim or that Norwood should be

allowed to proceed further with respect to this claim. Slack, supra, 529 U.S.

at 484, 120 S.Ct. at 1604 (“Where a plain procedural bar is present and the

district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition

or that the petitioner should be allowed to proceed further.”). In addition, as

it relates to petitioner’s assertions of ineffective assistance of counsel,

reasonable jurists could not debate whether Norwood’s § 2255 motion to

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45

vacate should be resolved in a different manner or that the Sixth Amendment

issue(s) presented are adequate to deserve encouragement to proceed further.

CONCLUSION

The Magistrate Judge is of the opinion that petitioner’s rights were not

violated in this cause and that his request to vacate, set aside or correct his

sentence should be DENIED. Petitioner is not entitled to a certificate of

appealability.

The instructions which follow the undersigned’s signature contain

important information regarding objections to the report and recommendation

of the Magistrate Judge.

DONE this the 23rd day of December, 2009.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 2:06-cr-00176-CG-N Document 713 Filed 12/23/09 Page 45 of 46
14 Effective December 1, 2009, the time for filing written objections was extended

to “14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P.

72(b)(2). 

46

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must,

within fourteen (14) days of the date of service of this document, file specific written

objections with the Clerk of this court. Failure to do so will bar a de novo determination by

the district judge of anything in the recommendation and will bar an attack, on appeal, of the

factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855

F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B,

1982)(en banc). The procedure for challenging the findings and recommendations of the

Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A),

by filing a ‘Statement of Objection to Magistrate Judge’s Recommendation’

within ten days14 after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection

shall specify those portions of the recommendation to which objection is

made and the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to

submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a

brief in support of the objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C.

§ 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original

records in this case are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the

cost of the transcript.

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