                                                              NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 ______________

                                  No. 13-2836
                                 _____________

                      UNITED STATES OF AMERICA,

                                       v.

                          MICHAEL NORWOOD,

                                                  Appellant

                                 _____________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW JERSEY
                 (D.C. Crim. Action No. 1-96-cr-00232-001)
                  District Judge: Honorable Joseph E. Irenas
                               ______________

                  Submitted Under Third Circuit LAR 34.1(a)
                               March 18, 2014
                              ______________

    Before: CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit Judges.

                        (Opinion Filed: May 13, 2014 )

                                 ______________

                                    OPINION
                                 ______________

GREENAWAY, JR., Circuit Judge.
                                       1
       Following a jury trial, Appellant Michael Norwood (“Norwood”) was convicted of

bank robbery, armed bank robbery, carjacking, two counts of use of a firearm in relation

to a crime of violence (one for robbery and another for carjacking), and possession of a

firearm by an armed career criminal. Norwood was initially sentenced in 1997 and was

resentenced in 1999, April 2013 and June 2013. Norwood appeals his most recent

resentencing on a variety of grounds.

       For the reasons discussed below, we will affirm the judgment of conviction.

                                 I.     BACKGROUND

        Because we write primarily for the parties who are familiar with the facts and

procedural history, we recount only the essential facts.

       On April 12, 1996, Norwood entered the Amboy National Bank in Old Bridge,

New Jersey and walked out with over $15,000 that he had demanded from the bank

tellers, while brandishing a handgun. Shortly thereafter, Norwood approached a motorist,

demanded that he get out of his car at gunpoint, and drove away. Later, the motorist’s

vehicle was recovered, together with Norwood’s handgun. The following day the police

arrested Norwood and an accomplice.

       While the procedural history is rather extensive, a truncated overview is

warranted. At Norwood’s first trial, Norwood waived his right to counsel and

represented himself. Assistant Federal Public Defender (“AFPD”) Lori Koch served as

standby counsel. A mistrial was declared when the jury was unable to reach a verdict.


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         At the bifurcated retrial Norwood represented himself again. The jury found

Norwood guilty of bank robbery, armed bank robbery, carjacking and two counts of use

of a firearm in relation to a crime of violence (one for robbery and another for

carjacking). In the second half of the bifurcated trial, a jury found Norwood guilty of

possession of a firearm by an armed career criminal. Based on these convictions,

Norwood received an aggregate prison term of life plus 25 years.

         After this Court rejected Norwood’s first appeal, United States v. Norwood, 142

F.3d 430 (3d Cir. 1998), Norwood filed a petition for collateral review pursuant to 28

U.S.C. § 2255. The District Court granted the petition as to a sentence miscalculation but

denied the other claims. At a resentencing hearing, Norwood raised six additional claims

and the District Court denied each of them. Norwood appealed both the partial denial of

his first § 2255 motion, docketed by this Court as No. 99-5510, and the denial of his six

additional claims, docketed by this Court as No. 99-5992. After consolidating the two

appeals, this Court concluded that it lacked jurisdiction to consider the claims in either

appeal and therefore dismissed both. Norwood v. United States, 229 F.3d 1138 (3d Cir.

2000).

         In September 1999, the District Court granted Norwood’s pro se motion for the

appointment of new counsel, other than AFPD Koch, finding that an actual conflict

existed because Norwood filed a complaint against AFPD Koch with the New Jersey

Supreme Court’s Office of Attorney Ethics. (See Supp. App. 132-33.)

                                              3
       In June 2006, Norwood filed a second § 2255 petition, which was also denied by

the District Court. Norwood did not appeal the District Court’s order.

       Norwood’s third § 2255 petition, which was filed in December 2010 and claimed

for the first time that his sentences for bank robbery and armed bank robbery violated

double jeopardy, was denied by the District Court; however, this Court ultimately vacated

and remanded the District Court’s order because Norwood’s conviction for bank robbery

(Count One) and armed bank robbery (Count Two) did in fact violate the Double

Jeopardy clause. Norwood v. United States, 472 F. App’x 113 (3d Cir. 2012).

       On remand, in April 2013, the District Court issued an amended judgment on

certain counts of the indictment without holding a formal resentencing hearing. On

appeal, the Government conceded that the District Court erred and that Norwood was

entitled to a de novo resentencing hearing.

       Prior to this resentencing hearing, the District Court appointed AFPD Christopher

O’Malley to represent Norwood. Thereafter, Norwood moved to disqualify AFPD

O’Malley, arguing that his previous conflict with AFPD Koch should be imputed to the

entire Federal Public Defender’s Office. The District Court denied the motion. Norwood

then filed a motion to proceed pro se, which the District Court granted. In June 2013, the

District Court held the resentencing hearing (the “June 2013 Resentencing”) and

resentenced Norwood to an aggregate term of imprisonment of five hundred months.

Norwood now appeals the sentence, the denial of his motion to disqualify AFPD

                                              4
O’Malley, and the grant of his motion to proceed pro se.

                                 II.          JURISDICTION

        The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has

jurisdiction over the challenge to the sentence under 18 U.S.C. § 3742(a) and 28 U.S.C. §

1291.

                                       III.    ANALYSIS

A. Waiver of the Right to Counsel

        “Our review of whether a defendant’s waiver of counsel was knowing and

intelligent is plenary as it involves only legal issues.” United States v. Stubbs, 281 F.3d

109, 113 n.2 (3d Cir. 2002).

        Before a criminal defendant can be permitted to proceed pro se, a court must make

certain that he is knowingly, voluntarily, and intelligently waiving his Sixth Amendment

right to counsel. See, e.g., Faretta v. California, 422 U.S. 806, 835 (1975); see also U.S.

Const. amend. VI. (“In all criminal prosecutions, the accused shall enjoy the right . . . to

have the Assistance of Counsel for his defence.”). Because of the singular import of the

right to counsel, we have instructed that “[c]ourts must indulge every reasonable

presumption against a waiver of counsel.” Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir.

2000). Accordingly, such a waiver “ought not [be] accept[ed] . . . absent a penetrating

and comprehensive examination of all the circumstances.” Stubbs, 281 F.3d at 118

(internal quotation marks omitted). It is clear that “the defendant [must] be informed of


                                                 5
all risks and consequences associated with his decision for self-representation.” United

States v. Peppers, 302 F.3d 120, 135 (3d Cir. 2002) (emphasis omitted).

       Norwood argues that—while he knowingly, voluntarily, and intelligently waived

his right to counsel after the District Court conducted a proper Faretta colloquy in

1997—Norwood revoked that waiver “when counsel was appointed for [Norwood’s] re-

sentencing on October 29, 1999, and revoked [it] again when counsel was appointed on

April 5, 2013.” (Appellant Br. 7-8.) According to Norwood, these revocations required

the District Court to conduct a new Faretta colloquy before allowing Norwood to

proceed pro se at the June 2013 Resentencing. (Id.) Having not conducted this colloquy,

Norwood argues that his waiver of the right to counsel was not knowingly, voluntarily or

intelligently made.

       We disagree. Absent an express revocation of the criminal defendant’s waiver or

some other change in circumstances, a district court has no standing obligation to revisit

the waiver question and conduct another Faretta colloquy at a later stage in criminal

proceedings. Cf. United States v. McBride, 362 F.3d 360, 367 (6th Cir. 2004) (adopting

rule established by “[o]ther circuits[, which] have held that a valid waiver remains in

effect at subsequent proceedings in the absence of an explicit revocation by the defendant




                                             6
or a change of circumstances that would suggest that the district court should make a

renewed inquiry of the defendant”).1

       On the record before us, there is nothing to suggest that Norwood explicitly

revoked his prior waiver of the right to counsel. There is also no evidence suggesting

that his waiver was anything other than knowing, voluntary and intelligent. Norwood’s

motion to proceed pro se clearly established his desire to exercise his right to self-

representation. Furthermore, having proceeded pro se for a number of years in this case,

Norwood has demonstrated a keen understanding of the implications and ramifications of

his decision to proceed pro se. (See Supp. App. 125 (stating that the “defendant has

proceeded pro se throughout the course of this case, including trial, sentencing, two direct

appeals, and several post-appeal applications” and “has a constitutional right to represent

himself at sentencing”).) The record does not reflect any change of heart on this issue.

Moreover, Norwood sets forth no evidence reflecting a change in circumstances

sufficient to have required a new inquiry into his decision to waive his right to counsel at

the June 2013 Resentencing. Thus, the District Court did not err.




1
  See also United States v. Modena, 302 F.3d 626, 630-31 (6th Cir. 2002) (where criminal
defendant “gave the district court no reason to suspect that he was uncertain about
representing himself,” no new Faretta colloquy was required and his waiver was
knowing, intelligent and voluntary, even though “Modena had an interim change of heart
regarding his decision to proceed pro se”).
                                              7
       B. Motion to Disqualify Counsel

       “We review the district court’s order in two stages.” United States v. Stewart, 185

F.3d 112, 120 (3d Cir. 1999). “First, we exercise plenary review to determine whether

the district court’s disqualification [decision] was arbitrary—the product of a failure to

balance proper considerations of judicial administration against the right to counsel.” Id.

(internal quotation marks omitted). “If we find that the district court’s decision was not

arbitrary, we then determine whether the court abused its discretion.” Id.

       Norwood argues that the District Court erred in failing to grant his motion to

disqualify his court-appointed counsel, AFPD O’Malley, pursuant to Rule 1.10(a) of the

New Jersey Rule of Professional Conduct (“RPC”). (Appellant Br. 8-9.) According to

Norwood, the District Court erred because Norwood had an actual conflict with AFPD

Koch, who had represented him previously in this case. (Id.) As such, Norwood argues

that all attorneys in the Office of the Federal Public Defender should have been

prohibited from representing him pursuant to Rule 1.10(a). (Id.)

       The District Court did not err. RPC 1.10(a) states that “[w]hen lawyers are

associated in a firm, none of them shall knowingly represent a client when any one of

them practicing alone would be prohibited from doing so by RPC 1.7 or RPC 1.9, unless

the prohibition is based on a personal interest of the prohibited lawyer and does not

present a significant risk of materially limiting the representation of the client by the

remaining lawyers in the firm.” RPC 1.10(a) (emphasis added). As the District Court

                                              8
properly determined, even assuming that Norwood had an actual conflict of interest with

AFPD Koch, that conflict did not prevent AFPD O’Malley from subsequently

representing Norwood. The italicized language quoted above carves out an exception

where there exists no significant risk of material limits on client representation. (Supp.

App. 131-34.) Given Norwood’s failure to identify any risk associated with AFPD

O’Malley’s representation, his argument fails. The District Court’s decision was not

arbitrary, and it did not abuse its discretion in denying Norwood’s motion to disqualify

AFPD O’Malley.

       C. District Court’s Sentencing Determinations

       We have plenary review of a district court’s sentencing determination to the extent

that it involves the application of legal principles. See, e.g., Gov’t of the Virgin Islands v.

Martinez, 239 F.3d 293, 297 (3d Cir. 2001).

       1. Application of the Guideline Manual In Effect on the Date of Sentencing

       Norwood argues that the District Court should have used the Guidelines Manual in

effect on the date of his resentencing, namely, the 2012 Sentencing Guidelines Manual.

(Appellant Br. 9.) However, the language of 18 U.S.C. § 3742(g)(1) reflects that it was

proper for the District Court to use the 1995 Guidelines Manual, which was the manual

used at Norwood’s original sentencing. 18 U.S.C. § 3742(g)(1) (providing that a “district

court to which a case is remanded . . . shall apply the guidelines . . . that were in effect on

the date of the previous sentencing of the defendant prior to the appeal”). We therefore

                                               9
find that the District Court did not err in applying the 1995 Guidelines Manual when

determining Norwood’s sentence.

       2. Violent Felony Convictions

       The Armed Career Criminal Act (“ACCA”) 18 U.S.C. § 924(e), provides that:

         In the case of a person who violates section 922(g) of this title and has
         three previous convictions by any court referred to in section 922(g)(1)
         of this title for a violent felony . . . committed on occasions different
         from one another, such person shall be . . . imprisoned not less than
         fifteen years . . . .

18 U.S.C. § 924(e)(1).

       Norwood challenges the District Court’s application of the ACCA, contending that

his prior federal bank robbery conviction and his prior state conviction for attempted

aggravated assault on a police officer were part of a single criminal episode and must be

treated as one conviction. (Appellant Br. 10.)

       This contention is in error. In United States v. Schoolcraft, 879 F.2d 64 (3d Cir.

1989) (per curiam), we adopted the “separate episodes” test for purposes of enhanced

sentencing under the ACCA:

       The issue of enhanced sentencing under the ACCA has frequently arisen in
       cases where the defendant received multiple convictions in a single judicial
       proceeding. In each of these cases, courts have held that the individual
       convictions may be counted for purposes of sentencing enhancement so
       long as the criminal episodes underlying the convictions were distinct in
       time . . . In each case, the “separate episode test” was adopted. Recently,
       the Second Circuit stated that “it is fairly well-established in other circuits
       that § 924(e)(1)'s reference to ‘convictions’ pertains to single ‘episodes’ of
       felonious criminal activity that are distinct in time . . . .”

                                             10
Id. at 73 (citing United States v. Towne, 870 F.2d 880, 889 (2d Cir. 1989). In

Schoolcraft, we did not describe in detail the criteria that should be used to determine

what constitutes a “separate” episode for purposes of the ACCA. However, several

circuits have explained that even brief differences in time between crimes suffice to

constitute separate episodes. For example, the Seventh Circuit stated that “it is necessary

to look to the nature of the crimes, the identities of the victims, and the locations.”

United States v. Cardenas, 217 F.3d 491, 492 (7th Cir. 2000). Additionally, “we must

ask whether the defendant had sufficient time to cease and desist or withdraw from the

criminal activity.” Id.

       In the instant case, the separate episode test makes it clear that the bank robbery

and attempted aggravated assault were two distinct crimes. The two crimes were

committed in different states and against different victims. Norwood had opportunities to

cease and desist from further criminal activity. Therefore, each crime must be seen as a

separate and distinct criminal episode. The multiple crimes do not constitute a single

criminal episode, as Norwood contends. Therefore, the District Court properly concluded

that they constituted separate offenses for purposes of § 924(e).

       Norwood also argues that the District Court “found facts that he had three prior

convictions” for violent felonies that occurred on occasions different from one another

and thereby violated his “Sixth Amendment jury-trial right.” (Appellant Br. 11.) This

argument is also without merit. As this Court stated in United States v. Blair, 734 F.3d

                                              11
218, 227-28 (3d Cir. 2013), a District Court is permitted to take judicial notice of “details

related to prior convictions” without fact-finding by a jury. The District Court’s findings

were therefore proper.

       3. Restitution

       Norwood argues that the District Court abused its discretion in failing to make

specific factual findings regarding his ability to pay restitution. While it is true that this

Court has held that such findings are required where there is a dispute over restitution,

see United States v. Pollak, 844 F.2d 145, 155-56 (3d Cir. 1988), we explained in United

States v. Kendis, 883 F.2d 209, 211 (3d Cir. 1989) that such specific findings relating to a

defendant’s ability to pay restitution are not required when there is no dispute regarding a

defendant’s ability to make restitution. Since there was no dispute about Norwood’s

ability to pay either prior to or at any of Norwood’s sentencing hearings, the District

Court did not abuse its discretion.

       4. Consecutive Sentences

       The District Court sentenced Norwood to a mandatory five-year consecutive

sentence on Count Three (use of a firearm in relation to armed bank robbery) and a

mandatory twenty-year consecutive sentence on Count Five (use of a firearm in relation

to carjacking). (See Supp. App. 22.) In so doing, the District Court relied upon the text

of the federal statute. See 18 U.S.C. § 924(c)(1) (“Whoever, during and in relation to any

crime of violence . . . uses or carries a firearm, shall, in addition to the punishment

                                              12
provided for such crime of violence . . . be sentenced to imprisonment for five years . . .

In the case of his second or subsequent conviction under this subsection, such person

shall be sentenced to imprisonment for twenty years . . . .”). It also relied upon

Deal v. United States, 508 U.S. 129 (1993), which held that an enhanced penalty can be

imposed even where the “second or subsequent conviction” results from the same multi-

count indictment as the first conviction—as was the case here—rather than from a

conviction occurring after the first conviction is final. Norwood’s argument, that

evolving standards of decency require that Deal be abrogated, is without merit.

                                  IV.    CONCLUSION

       For the foregoing reasons, we will affirm the judgment of conviction.




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