                                                                   [DO NOT PUBLISH]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

                                          5
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

                                          6
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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