The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13886 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 16, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:08-cr-00222-WKW-CSC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
STEPHEN CHARLES NORRELL,
a.k.a. Srunway 36,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(August 16, 2011)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Stephen Charles Norrell appeals his conviction and 42-month sentence for
knowingly attempting to transfer obscene matter to an individual under the age of
16, in violation of 18 U.S.C. § 1470. On appeal, Norrell raises three issues: (1)
whether the district court erred as a matter of law when it instructed the jury that
knowledge under § 1470 may be established if Norrell believed that the person to
whom he attempted to transfer obscene matter was under 16 years old; (2) whether
the district court clearly erred in applying a seven-level enhancement to Norrell’s
base offense level for conduct intended to persuade, induce, entice, coerce, or
facilitate the travel of, a minor to engage in prohibited sexual conduct; and (3)
whether Norrell’s 42-month sentence, which was within the advisory Guidelines
range, was procedurally and substantively reasonable.
I.
We review de novo the legal correctness of a jury instruction. United States
v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). “Generally, district courts have
broad discretion in formulating jury instructions provided that the charge as a
whole accurately reflects the law and the facts.” Id. (internal quotation marks
omitted). And “we will not reverse a conviction on the basis of a jury charge
unless the issues of law were presented inaccurately, or the charge improperly
guided the jury in such a substantial way as to violate due process.” Id. (internal
quotation marks omitted).
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Norrell argues that the district court’s jury instruction constructively
modified the indictment by changing an essential element of the charged offense
under § 1470. This argument is unpersuasive.
Section 1470 provides:
Whoever, using the mail or any facility or means of
interstate or foreign commerce, knowingly transfers
obscene matter to another individual who has not attained
the age of 16 years, knowing that such other individual has
not attained the age of 16 years, or attempts to do so, shall
be fined under this title, imprisoned not more than 10
years, or both.
18 U.S.C. § 1470. The district court’s instruction relating the elements needed to
convict under § 1470 tracked the language of the statute. (Doc. 70 at 8). But
Norrell’s challenge relates to the court’s charge concerning “proof of knowledge,”
which read:
When knowledge of the existence of a particular fact is an
essential part of an offense, such knowledge may be
established if the Defendant believed that the fact existed.
If you find that the Defendant did not actually believe the
fact existed, you cannot find that the Defendant had the
requisite knowledge.
(Doc. 70 at 15) (emphasis added). He argues the court erroneously instructed the
jury that proof of a defendant’s belief is sufficient to establish his knowledge.
Therefore, the issue before us is whether the district court’s construction of the
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term “knowing” in § 1470 was erroneous.
Importantly, Norrell was charged with attempt under § 1470, so we consider
this issue as it relates to an inchoate offense under the statute. Other circuits have
determined that a defendant’s belief that he was transferring obscene material to a
person under the age of 16 was sufficient to support an attempt conviction under
§ 1470. See United States v. Rudzavice, 586 F.3d 310, 313–14 (5th Cir. 2009);
United States v. Spurlock, 495 F.3d 1011, 1013 (8th Cir. 2007). This reasoning is
consistent with our decision in United States v. Root, 296 F.3d 1222 (11th Cir.
2002), superseded by statute on other grounds as recognized in United States v.
Jerchower, 631 F.3d 1181, 1186–87 (11th Cir. 2011). In Root, we reviewed a
conviction for knowingly attempting to persuade a minor to engage in criminal
sexual activity in violation of 18 U.S.C. § 2422(b), and we concluded that “an
actual minor victim is not required for an attempt conviction” under that statute.
Id. at 1223, 1227. We explained, “Root’s belief that a minor was involved is
sufficient to sustain an attempt conviction under 18 U.S.C. § 2422(b).” Id. at
1227; see also United States v. Bauer, 626 F.3d 1004, 1007–08 (8th Cir. 2010)
(considering defendant’s conviction for attempted receipt of child pornography
under 18 U.S.C. § 2252A, and concluding, “[t]he stipulated facts demonstrate that
Bauer believed that he was communicating with a fourteen-year-old girl and
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intended to receive pornographic images of her. Bauer’s undisputed belief that his
victim was a minor satisfies the ‘knowingly’ requirement of the statute”); United
States v. Coté, 504 F.3d 682, 687–88 (7th Cir. 2007) (“In a criminal attempt, a
defendant who believes certain requisite facts to be true has the necessary intent
for a crime requiring the mens rea of ‘knowledge.’”).
Norrell was charged with attempt under § 1470; therefore, the district
court’s construction of the term “knowing” as encompassing Norrell’s “belief”
was consistent with the statutory language and the indictment. Accordingly, the
court did not err when it charged the jury regarding proof of Norrell’s knowledge.
II.
We review a district court’s factual finding as to whether a defendant
qualifies for a sentencing enhancement for clear error. United States v. Perez-
Oliveros, 479 F.3d 779, 783 (11th Cir. 2007). Section 2G3.1(b)(1)(E) of the
Sentencing Guidelines provides for a seven-level enhancement if the offense
involved “[d]istribution to a minor that was intended to persuade, induce, entice,
coerce, or facilitate the travel of, the minor to engage in prohibited sexual
conduct . . . .” U.S.S.G. § 2G3.1(b)(1)(E).
The record evidence supports a finding that Norrell’s
communications—both the statements he made and the images he
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transmitted—were intended to entice “katielil92” to engage in prohibited sexual
conduct. For example, Norrell proposed meeting “katielil92,” suggested how she
might deceive her mother to keep their meeting a secret, and explained what he
would do to and with “katielil92” if they were to meet. Accordingly, the district
court did not clearly err in determining that Norrell qualified for the seven-level
enhancement.
III.
We review the reasonableness of a sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51, 128 S. Ct. 586 (2007). The party challenging the
sentence has the burden of establishing that it was unreasonable. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam). Our reasonableness
review involves a two-step process: first, we evaluate the sentence for procedural
error; and second, we evaluate the sentence’s substantive reasonableness. Gall,
552 U.S. at 51.
In our procedural analysis, we consider whether the district court correctly
calculated the defendant’s Guidelines range, treated the Guidelines as advisory,
considered the factors listed in 18 U.S.C. § 3553(a), chose a sentence based on
facts that were not clearly erroneous, and explained the sentence adequately,
including any deviation from the Guidelines range. Id. To determine substantive
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reasonableness, we consider whether the district court acted within its discretion in
determining the § 3553(a) factors supported the chosen sentence and then justified
any substantial deviation from the applicable Guidelines range. Id. at 56. “‘The
weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court,’ and ‘we will not substitute our judgment in
weighing the relevant factors.’” United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir. 2007) (quoting United States v. Williams, 456 F.3d 1353, 1363 (11th Cir.
2006) (citations omitted)) (alterations omitted).
Norrell’s 42-month sentence is reasonable. The sentence is procedurally
reasonable because the district court appropriately considered the Guidelines and
the § 3553(a) factors, and thoroughly explained the reasons for imposing the
sentence it did. And the sentence was substantively reasonable because the district
court acted within its discretion in applying the § 3553(a) factors to this case.
AFFIRMED.
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