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Norris v. United States

United States District Court, E.D. Missouri, Southeastern Division

November 15, 2019

LOUIS JON NORRIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Louis Jon Norris, a person in federal custody. On November 29, 2016, Norris pled guilty before this Court to the offense of Felon in Possession of a Firearm (Count I), and Felon in Possession of a Firearm (Count 2). On February 28, 2017, this Court sentenced Norris to the Bureau of Prisons for a term of 120 months on Count I, and 115 months on Count II, to run consecutive for an aggregate term of 235 months imprisonment. Norris' § 2255 motion is fully briefed and ripe for disposition.

         I. FACTS

         A. INDICTMENT

         On July 21, 2016, Louis J. Norris (Norris) was charged by Indictment in the Eastern District of Missouri for two counts of being a convicted felon in possession of a firearm in violation of Title 18, United States Code, Section 922(g)(1). (DCD 1)

         B. PLEA AGREEMENT AND GUILTY PLEA

         On November 29, 2016, Norris executed a plea agreement, pursuant to which he pled guilty to both counts in the Indictment, which charged him with two separate incidents of being a convicted felon in possession of different firearms. (PSR, ¶ 1, DCD 1, 33)[1]

         On November 29, 2016, Norris appeared with his attorney and pled guilty to Counts I and II of the Indictment. In his plea agreement, Norris acknowledged, "having voluntarily entered into both the plea agreement and guilty plea," and that "[he], is in fact, guilty." (Plea Ag. p. 13) Under the Plea Agreement, Norris acknowledged that his base offense level would be "found in Section 2K2.1 and depends on the nature of the firearms, the defendant's criminal history and other factors therein."(Plea Ag. p. 7) Norris also agreed that, pursuant to the United States Sentencing Guidelines (U.S.S.G.), two Specific Offense Characteristics applied:

2 levels should be added pursuant to Section 2K2.1(b)(4), because a firearm defendant possessed was stolen; [and] (b) 4 levels should be added pursuant to Section 2K2.1(b)(6)(B), because defendant used or possessed a firearm in connection with another felony offense.

(Plea Ag., p. 7)

         Relative to Chapter 3 Adjustments, Norris agreed that "6 levels should be added because, in a manner creating a substantial risk of serious bodily injury, the defendant knowingly assaulted a law enforcement officer during the course of the offense." (Plea Ag., p. 7). It was also agreed that Norris should receive three levels for acceptance of responsibility pursuant to Section 3E1.1 (a) and (b), since his offense level prior to Chapter 3 adjustments was 16 or higher. (Id. at p. 8)

         The Plea Agreement noted that" [t]he defendant has been fully apprised by defense counsel of [his] rights concerning appeal and fully understands the right to appeal the sentence under Title 18 U.S.C. § 3742." (Plea Ag. p. 9) The parties waived all rights to appeal non-jurisdictional, non-sentencing issues, including any issues related to pretrial motions, discovery and the guilty plea. (Plea Ag. p. 9, Plea Tr. pp. 10-11)

         During his change of plea hearing, when asked if he was satisfied with the way his lawyer had handled his case, Norris replied "Yes." (Plea Tr. 7) Norris acknowledged to the Court that his lawyer had investigated the case to his satisfaction. When asked if Mr. Skrien had done everything he had asked him to do, Norris responded, "Yes, sir." (Plea Tr. 7-8) When asked if he had any "gripes or complaints whatsoever," Norris responded, "No, I don't have any." (Plea Tr. 8) In the Plea Agreement, Norris represented that he was satisfied with the representation he had received from his lawyer.

The defendant is fully satisfied with the representation received from defense counsel. The defendant has reviewed the government's evidence and discussed the government's case and all possible defenses and defense witnesses with defense counsel. Defense counsel has completely and satisfactorily explored all areas which the defendant has requested relative to the government's case and any defenses.

(PleaAg. 13)

         Norris also indicated that he had read the Plea Agreement, had gone over it in detail with his attorney, that his attorney had explained the contents of the agreement in detail to him, and that he understood the agreement. (Plea Tr. 9-10) When asked if there was anything in the agreement that he did not understand, Norris replied "No." (Plea Tr. 10) The court asked Norris "Have any promises been made by anyone to get you to plead guilty other than the promises set out in this agreement?" (Plea Tr. 10) Norris replied, "No, sir. No." Relative to the application of the sentencing guidelines to his case, Norris acknowledged during the plea hearing that Mr. Skrien had explained the sentencing guidelines to him. (PleaTr. 11)

         In the Plea Agreement, Norris also agreed" to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to Title 28, United States Code, Section 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel." (Plea Ag. 9-10)

         C. THE PRESENTENCE REPORT

         The United States Probation Office prepared a Presentence Investigation Report (PSR). As indicated in the Offense Conduct section of the PSR, paragraphs 12-17, on April 11, 2016, in Shannon County, Missouri, Norris, a convicted felon, separately possessed two different firearms. First, an Arsenal, Bulgaria, PM (Makarov) 9x18 caliber semi-automatic pistol as charged in Count I, then a Glock 22, .40 S & W caliber semi-automatic pistol as charged in Count II.

         Offense Conduct

         On April 11, 2016, Shannon County, Missouri Sheriffs Deputy Vance was serving papers on County Road 670. While driving, Deputy Vance observed a white, sport utility vehicle (SUV) driving in the opposite direction and stopped the vehicle in an attempt to locate a residence. When the driver of the SUV stopped beside Deputy Vance's patrol vehicle, he observed the driver to be Norris. He had prior knowledge that Norris did not possess a valid driver's license and directed Norris to exit his vehicle. When Norris got out of his vehicle, Deputy Vance observed Norris place an unknown object into his right boot. Norris denied possessing a firearm, and gave Deputy Vance permission to search his vehicle. Norris told Deputy Vance to not get too close or his pit bull dog might bite. After Deputy Vance asked Norris if there was a firearm in the car, Norris replied that there was a pistol under the driver's seat of his vehicle. (PSR, ¶ 13)

         As Deputy Vance was placing Norris under arrest, a vehicle drove by. When Deputy Vance looked at the vehicle, Norris struck him in the left side of the head with Norris' right fist several times. Deputy Vance was able to take Norris to the ground, striking him several times. As Norris and Deputy Vance fought, Norris removed a firearm out of his right boot. Deputy Vance knocked the pistol from Norris' hand and into the road. A witness in the passing vehicle stopped to assist Deputy Vance. (PSR, ¶ 13)

         The witness, Danielle Lind, exited the vehicle and asked, "What do I do?" Deputy Vance told Lind to get the gun. Deputy Vance then placed Norris into a headlock. Norris picked up an unknown object and hit Deputy Vance in the head with it. Norris was able to break Deputy Vance's hold and place him in a headlock. He struck Deputy Vance several times in the back of the head with his fist. (Plea Ag., p. 4) While Norris was on top of Deputy Vance, he grabbed the deputy's duty pistol from his hip. Norris pulled on the pistol trying to get it out of the holster. Norris then put the holstered pistol in Deputy Vance's face and said, "stop or I'm going to shoot." (PSR, ¶ 13; Plea Ag., p. 4)

         Deputy Vance knocked the pistol from Norris' hands and into the ditch. Norris again placed Deputy Vance in a headlock. Norris and Deputy Vance continued to struggle. Norris was able to break free and began moving toward Lind stating "give me my gun back;" however, Deputy Vance positioned himself between Norris and Lind, and pushed him, stating "get back" several times. (Plea Ag., p. 4) Lind gave Deputy Vance Norris' firearm and stated that she had unloaded it. Norris attempted to retrieve his firearm from Deputy Vance, but he threw the firearm into his patrol vehicle while pushing Norris back. As Deputy Vance was attempting to get another weapon from his patrol vehicle, Norris ran to his vehicle and fled the area. (PSR, ¶ 13; Plea Ag., p. 4)

         Deputy Vance called over the radio that he had been assaulted by "LJ" Norris on County Road 670 near T Highway, and Norris had fled eastbound from his location in a white Ford Explorer. Deputy Richard O'Dell arrived at the scene, but Deputy Vance had already left via ambulance. Deputy O'Dell met with Lind, who stated she saw the entire incident and provided a written statement. Lind indicated that when Norris pointed the gun at Deputy Vance, he had his finger behind the trigger and was unable to fire the gun. Lind further stated that she was sure she was going to see the man kill the deputy. Lind provided Deputy O'Dell with the firearm she recovered during the fight, which was identified as a Makarov 9mm. (Plea Ag., pp. 4-5)

         Deputy O'Dell examined the area where the fight occurred and located pieces of Deputy Vance's uniform. He located Deputy Vance's firearm across the ditch in the fence row. Deputy Vance was transported from the scene to Mountain View Hospital, and was released later that evening. He was diagnosed with a closed head injury, contusion of face, and a foreign body in soft tissue. (Plea Ag., p. 5; PSR, ¶ 14)

         On April 12, 2016, officers received notice that Norris' vehicle was found on County Road 675. The owner of the vehicle indicated that Norris was in the process of buying the vehicle from him. A female was apprehended who advised Norris was in the vehicle; however, he fled the area when he saw officers. Officers seized the woman's cell phone and read text messages between her and Norris. Through an exchange of text messages between Norris and officers, Norris agreed to surrender to law enforcement, and he did so on April 17, 2016. (PSR, ¶ 15)

         Total Offense Level

         The recommended base offense level for Norris' offense was 24. (PSR, ¶ 25) Two levels were added because Norris stole the deputy's firearm during the assault. (PSR, ¶ 26) Since Norris used a firearm in connection with another felony offense, the assault of a law enforcement officer, his offense level was increased by four levels. (PSR, ¶ 27) As Norris assaulted someone he knew to be a law enforcement officer during the commission of the offense, and acted in a manner that created a substantial risk of serious bodily injury to the officer, his offense level was increased by six levels. (PSR, ¶ 28) His adjusted offense level was 36. (PSR, ¶ 31) After a three level reduction for acceptance of responsibility, Norris' total offense level was 33. (PSR, ¶ 35)

         Criminal History

         Norris had several criminal convictions identified in his PSR. A number of misdemeanor alcohol, drug, and driving offenses he committed in the 1990s did not count for criminal history points, including three driving while intoxicated convictions and two convictions for driving while revoked. (PSR, ¶¶ 38-46) On July 18, 2000, Norris was convicted of the misdemeanor of assault in the third degree in the Circuit Court of Shannon County, Missouri, for which he was sentenced to ten days in jail, but execution of that sentence was suspended and he was placed on two years unsupervised probation. (PSR, ¶ 45)

         Norris was subsequently convicted of other assaults. On May 23, 2002, Norris was convicted of the misdemeanor of assault in the third degree in the Circuit Court of Shannon County, Missouri, for which he was sentenced to one year in in jail, but execution of that sentence was suspended and he was placed on two years unsupervised probation. On February 24, 2004, Norris' probation was revoked and he was sentenced to six months in jail. (PSR, ¶ 48) On January 22, 2007, Norris was convicted of the Class C felony of Domestic Assault in the Second Degree in the Circuit Court of Shannon County, Missouri, for which he was sentenced to three years in prison. (PSR, ¶ 51) On November 25, 2013, Norris was convicted of an apparent misdemeanor of assault in the Circuit Court of Shannon County, Missouri, for which he was sentenced to ten days in jail. (PSR, ¶57)

         Among other convictions, on February 23, 2005, Norris was convicted of Attempt to Manufacture a Controlled Substance in the Circuit Court of Shannon County, Missouri, for which he was sentenced to seven years in prison. After being paroled, Norris committed several violations of his parole. His parole was revoked twice. (PSR, ¶ 49)

         Norris had a criminal history score often, which established a criminal history category of V. (PSR, ¶ 61) Based on a total offense level of 33, and a criminal history category of V, Norris' guideline imprisonment range was 210 months to 262 months. (PSR, ¶ 95) At the sentencing hearing, Norris' criminal history category was later revised to IV, and his guideline range was determined to be 188-235 months. (S. Tr., pp. 4-5)

         Pending Charges

         At the time of sentencing, Norris had pending, unrelated charges in the Circuit Court of Howell County, Missouri, of felonious restraint, two separate offenses of resisting arrest, two counts of felony possession of a controlled substance, burglary in second degree, and felony stealing over $500.00. (PSR, ¶¶ 63-65) For the first referenced resisting arrest charge, on August 15, 2014, officers from the Birch Tree, Missouri Police Department were responding to a complaint that Norris had committed an assault with a firearm when they observed Norris operating a motor vehicle, and attempted to conduct a stop. Norris led the officers on a high-speed pursuit of over one hundred miles per hour. (PSR, ¶ 63) In a separate incident, on July 9, 2015, when a Birch Tree officer attempted to stop a vehicle Norris was operating and arrest him on an outstanding felony warrant, Norris again fled and accelerated to a high rate of speed. Eventually, Norris was apprehended after he ran off the road. (PSR, ¶ 65) The two resisting arrest offenses involved the same Birch Tree police officer. (S. Tr., p. 10)

         Sentencing Hearing

         A sentencing hearing was held before this Court on February 28, 2016. Prior to the sentencing hearing, Norris' counsel filed an Objection to Presentence Investigation Report, objecting to the statutory maximum punishment being twenty years instead often years, contesting Norris being sentenced based on his separate, successive, and distinct possession of two different firearms; to his criminal history category being V instead of IV; and to inclusion of a two-level enhancement because one of the firearms was stolen. (DCD 38) The Government filed an Amended Sentencing Memorandum addressing and contesting those objections. (DCD 49) At sentencing, the Government conceded the objection relative to criminal history category, agreeing that it should be IV instead of V. Norris withdrew his objection to the statutory cumulative maximum punishment of twenty years based on both counts, and to the two-level enhancement for possession of a stolen firearm. (S. Tr. pp. 4-5)

         At sentencing, this Court informed the parties that it had read the Government's amended sentencing memorandum, the sentencing memorandum submitted by defense counsel, the letters submitted on Norris' behalf and the letter Norris wrote to the Court. This Court indicated that he had "read all that very closely," and that he would take them into consideration. (S. Tr., p. 6)

         This Court asked for the Government's recommendation. The Government referenced Mr. Norris being responsible for a horrific, potentially very dangerous, if not deadly, set of circumstances, and recommended a within guideline sentence of 200 months. (S.Tr., pp. 7-8) This Court informed the parties that it had "read closely" Norris' Sentencing Memorandum and would take "all that into consideration." (S.Tr., p. 5) Norris' counsel recommended a ...


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