                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 14 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50215

                Plaintiff-Appellee,             D.C. No.
                                                2:13-cr-00388-RGK-2
 v.

EDWARD NOLAN NORWOOD, AKA                       MEMORANDUM*
Polo,

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    16-50249

                Plaintiff-Appellant,            D.C. No.
                                                2:13-cr-00388-RGK-2
 v.

EDWARD NOLAN NORWOOD, AKA
Polo,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                       Argued and Submitted April 9, 2018
                              Pasadena, California


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: BEA and MURGUIA, Circuit Judges, and KEELEY,** District Judge.

      Edward Norwood was indicted on conspiracy and distribution charges for

his role in the sale of crack cocaine to a confidential informant. The government

filed an information pursuant to 21 U.S.C. § 851 (the Information), alleging that

Norwood had a prior felony drug conviction and therefore was subject to a ten-year

mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B). The Information

identified the qualifying conviction as Norwood’s February 14, 2007 felony

conviction for possession of a controlled substance, in violation of California

Health & Safety Code § 11350.1

      In November 2014, while Norwood’s federal case was pending, California

voters approved Proposition 47, which allowed defendants with prior convictions

for certain felony offenses to petition the California courts to reclassify those

convictions as misdemeanors. See Cal. Penal Code 1170.18(f)–(h), (k). In July

2015, Norwood successfully petitioned to reclassify his prior felony drug

conviction as a misdemeanor. Norwood then moved to dismiss the Information on

the ground that he no longer had a qualifying prior felony drug conviction, and the

district court granted the motion. Facing a mandatory minimum sentence of five


      **
            The Honorable Irene M. Keeley, United States District Judge for the
Northern District of West Virginia, sitting by designation.
1
 Norwood was sentenced to five years of imprisonment for his 2007 conviction.
He committed the instant offense while on parole for that conviction.

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years, rather than ten years, Norwood entered a plea of guilty.

      At sentencing, the district court treated the 2007 conviction as a felony,

which yielded three additional criminal history points and two additional criminal

history points because Norwood was still on parole at the time he committed the

instant federal offense. U.S.S.G. § 4A1.1(a), (d). Based on a Criminal History

Category VI, the district court sentenced Norwood to 72 months of imprisonment.

      Norwood appeals the district court’s calculation of his criminal history

points. The government cross-appeals the district court’s dismissal of the

Information and its attendant failure to apply the ten-year mandatory minimum

sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a),

(b). We affirm in part and reverse in part.

      1. We review “the district court’s interpretation of the Sentencing Guidelines

de novo, the district court’s application of the Sentencing Guidelines to the facts of

[a] case for abuse of discretion, and the district court’s factual findings for clear

error.” United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006) (quoting

United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005)).

      Whether a defendant’s prior state conviction is a qualifying conviction under

the Sentencing Guidelines is a question of federal, not state, law. See United States

v. Norbury, 492 F.3d 1012, 1014 (9th Cir. 2007). Critically, when calculating

criminal history points, the sentencing court “looks to a defendant’s status at the


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time he commits the federal crime.” United States v. Yepez, 704 F.3d 1087, 1090

(9th Cir. 2012) (en banc) (per curiam); U.S.S.G. § 4A1.2. At the time Norwood

committed the instant federal offense, he had a prior final state felony drug

conviction and was on parole for that conviction. The district court correctly

determined that a reclassification under Proposition 47 did not alter these

“historical fact[s].” See Yepez, 704 F.3d at 1090 (holding that a state court’s

termination of probation “nunc pro tunc” as of the day before a defendant

committed his federal crime has “no effect on [the] defendant’s status at the

moment he committed the federal crime”); see also United States v. Salazar-

Mojica, 634 F.3d 1070 (9th Cir. 2011) (holding that a state court’s relabeling of a

conviction from a felony to a misdemeanor has no impact on the Guidelines

calculation). Thus, the district court did not err in calculating Norwood’s criminal

history points.

      2. We review de novo the district court’s dismissal of an information based

on its interpretation of a federal statute. United States v. Olander, 572 F.3d 764,

766 (9th Cir. 2009). Norwood argues that the government’s cross-appeal is moot

because the Information was not “in effect” at the time he pleaded guilty. Contrary

to Norwood’s claim, § 851(a) provides only that the information must be filed

“before trial, or before entry of a plea of guilty”; it does not require that the

information to be “in effect” at the time of a plea. 21 U.S.C. § 851(a). Further, the


                                            4                                       16-50215
government was not required to take an interlocutory appeal. The plain language of

§ 851(d) allows the government to appeal the dismissal of an information before

sentencing, but does not require it. See 21 U.S.C. § 851(d)(2). Moreover, the

government may always appeal a final sentence if it was “imposed in violation of

law.” 18 U.S.C. § 3742(b)(1). Thus, the government’s cross-appeal is neither moot

nor untimely.

      During the pendency of Norwood’s appeal, we decided United States v.

Diaz, which held that Proposition 47 “does not undermine a prior conviction’s

felony-status for purposes of [18 U.S.C.] § 841.” 838 F.3d 968, 975 (9th Cir.

2016). In Diaz, we made clear that the § 841 inquiry requires “only that a

defendant have committed his federal crime after” the qualifying federal drug

offense conviction became final. Id. at 973 (quoting 21 U.S.C. § 841(b)(1)(A))

(internal citations omitted). In other words, the event triggering application of the

enhancement is the finality of the conviction. Here, it is undisputed that, at the time

of his federal sentencing, Norwood’s prior state felony drug conviction was final.

Thus, under Diaz, Norwood’s prior conviction remains a qualifying offense under

§ 841, and the district court erred when it dismissed the government’s § 851

information. See id. at 973–94.

      As we have explained, § 851(a) “ensures proper notice so a defendant is able

to challenge the information. It allows a defendant to make an informed decision


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about whether or not to plead guilty.” United States v. Hamilton, 208 F.3d 1165,

1168 (9th Cir. 2000). Although Norwood was warned that the government could

appeal the dismissal of the Information, he argues on appeal that he would not have

pleaded guilty had the Information still been “in effect” at the time he entered his

plea. Having reviewed the plea colloquy, we conclude that a reasonable person in

Norwood’s position could have been confused about the potential consequences of

his guilty plea, which, in turn, could have affected the decision about whether or

not to plead. See United States v. Sperow, 494 F.3d 1223, 1228 (9th Cir. 2007).

      We therefore affirm the calculation of Norwood’s criminal history points

and reverse the dismissal of the government’s § 851 information. Because we are

not convinced that Norwood’s plea was knowingly and intelligently made, we

remand with instructions to the district court to allow Norwood to withdraw his

guilty plea.

      AFFIRMED in part, REVERSED in part, and REMANDED with

instructions.




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