United States v. Stephen Charles Norrell, aka Srunway

437 F. App'x 881
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 16, 2011
Docket10-13886
StatusUnpublished

This text of 437 F. App'x 881 (United States v. Stephen Charles Norrell, aka Srunway) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Stephen Charles Norrell, aka Srunway, 437 F. App'x 881 (11th Cir. 2011).

Opinion

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 proeedurally 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).

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 *883 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 Nor-rell’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 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 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 “[distribution to a minor that was intended to persuade, *884 induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct.... ” U.S.S.G. § 2G3.1(b)(l)(E).

The record evidence supports a finding that Norrell’s communications— both the statements he made and the images he 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 them meeting a secret, and explained what he would do to and with “katielil92” if they were to meet.

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Related

United States v. Rudzavice
586 F.3d 310 (Fifth Circuit, 2009)
United States v. Prather
205 F.3d 1265 (Eleventh Circuit, 2000)
United States v. John Allen Root
296 F.3d 1222 (Eleventh Circuit, 2002)
United States v. John Kevin Talley
431 F.3d 784 (Eleventh Circuit, 2005)
United States v. Juan Perez-Oliveros
479 F.3d 779 (Eleventh Circuit, 2007)
United States v. Damon Amedeo
487 F.3d 823 (Eleventh Circuit, 2007)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Bauer
626 F.3d 1004 (Eighth Circuit, 2010)
United States v. Jerchower
631 F.3d 1181 (Eleventh Circuit, 2011)
United States v. Spurlock
495 F.3d 1011 (Eighth Circuit, 2007)
United States v. Williams
456 F.3d 1353 (Eleventh Circuit, 2006)

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Bluebook (online)
437 F. App'x 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stephen-charles-norrell-aka-srunway-ca11-2011.