United States District Court, D. Minnesota
Allan A. Slaughter, Jr., Assistant U.S. Attorney, counsel for plaintiff.
Jeremy Dionne Norvell, Reg. No. 16059-041,
F.C.I. Florence, pro se.
DAVID S. DOTY, District Judge.
This matter is before the court upon the pro se motion by defendant Jeremy Dionne Norvell to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Based upon a review of the file, record, and proceedings herein, and for the following reasons, the court denies the motion and denies a certificate of appealability.
The complete background of this action is fully set out in the court's previous orders dated April 26, 2012, and September 4, 2012, and the court recites only those facts necessary for disposition of the instant motion. On August 17, 2011, Norvell was indicted on one count of possession with the intent to distribute opana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On December 5, 2011, the government issued a superseding indictment, which added a charge for conspiracy to distribute oxycodone, oxymorphone, and marijuana and separated the alleged drug distribution occurrences into individual counts. See ECF No. 44. On February 6, 2012, a second superseding indictment was issued, and the government filed an information to enhance Norvell's sentence. See ECF Nos. 74, 76.
The parties engaged in plea negotiations for many months, and those negotiations intensified following the second superseding indictment. Norvell, through his then-attorney Kevin Cornwell, demanded changes to the plea agreement offered by the government. Among other things, Norvell refused to stipulate to facts regarding his high-speed flight from law enforcement in Pine County on April 27, 2011, for which he faced separate state charges. The stipulation would have allowed the government to seek a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. See Gov't Ex. 10, ¶ 7g. Norvell was concerned that the stipulation would have an adverse impact on the pending state proceedings. See Gov't. Ex. 12. After conferring with Norvell, Cornwell proposed that the government remove any reference to the April 2011 incident and instead try to establish obstruction of justice based on Norvell's attempt to flee law enforcement at the time of his arrest on June 8, 2011. See id.; Second Cornwell Aff. ¶ 19. The government agreed to this modification and revised the plea agreement to include the following provision:
The Defendant is informed that the Government believes a 2-level increase is applicable because Defendant willfully obstructed or impeded the administration of justice. U.S.S.G. § 3C1.1. The Parties agree that no other Chapter 3 adjustments are applicable, except for acceptance of responsibility.
Gov't Ex. 14, ¶ 7g.
On February 17, 2012, Norvell pleaded guilty to count one of the second superseding indictment, charging him with conspiracy to distribute oxycodone, oxymorphone, cocaine, and marijuana. ECF No. 82. The executed plea agreement included the above-quoted language. See ECF No. 83, ¶ 7g. At the plea hearing, Norvell acknowledged his understanding that a two-level increase for obstruction of justice could apply:
Q: The government outlines that we think that you might be eligible for what's called a two-level increase to that base offense level of 30, and that it's applicable because you, in our opinion, willfully obstructed or impeded the administration of justice, do you understand that?
A: I do, sir.
Plea Hr'g Tr. at 15; see also Second Cornwell Aff. ¶ 20 ("[P]etitioner without doubt knew that an obstruction' enhancement based on the June 8, 2011, arrest facts could apply to (and thereby increase) his overall Guidelines sentence."). Norvell also acknowledged that he faced as many as 188 months' imprisonment. Plea Hr'g Tr. at 17; ECF No. 83, ¶ 7l. He also agreed to waive his appeal rights if the court sentenced him to at or below 188 months. Plea Hr'g Tr. at 19; ECF No. 83, ¶ 10. As contemplated by the plea agreement, the presentence investigation report (PSR) included a two-level increase for obstruction of justice:
During the course of his arrest [on June 8, 2011], the defendant backed into a law enforcement vehicle in an attempt to flee. A second police officer struck the defendant's vehicle given his history of fleeing police, and significant damage was incurred. Because the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course ...