United States v. Albert Vernon Norton

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 6, 2012
No. 11-12879
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 4:10-cr-00005-RLV-WEJ-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ALBERT VERNON NORTON,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 6, 2012)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Albert Vernon Norton appeals his total sentence of 264 months in prison, after
pleading guilty to the charge of receiving child pornography, in violation of 18 U.S.C.
§ 2252(a)(2) and (b). On appeal, Norton argues that: (1) the district court failed to
rule upon his objections to the presentence investigation report (“PSI”), failed to
consider all of the 18 U.S.C. § 3553(a) statutory factors, and failed to adequately
explain the reasons for the sentence it imposed; and (2) his sentence was
substantively unreasonable because, in light of all of the circumstances, including his
poor health, the sentence was longer than necessary to meet the goals of § 3553.
After careful review, we affirm.
We review issues first raised on appeal under a plain error standard. United
States v. Chisholm, 73 F.3d 304, 307 (11th Cir. 1996). A court of appeals has
discretion to correct plain errors or defects affecting substantial rights. Id. We
exercise this discretion only if: (1) there is error, (2) the error is plain, (3) the error
affects substantial rights, and (4) the error seriously affects “the fairness, integrity, or
public reputation” of the defendant’s sentencing proceeding. United States v. Olano,
507 U.S. 725, 733-34 (1993). We review the sentence a district court imposes for
“reasonableness,” which “merely asks whether the trial court abused its discretion.”
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United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United
States, 551 U.S. 338, 351 (2007)).
In reviewing sentences for reasonableness, we typically perform two steps. Id.First, we “‘ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence -- including an explanation for any deviation from the Guidelines range.’”
Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
If we conclude that the district court did not procedurally err, we must consider
the “‘substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” Id.(quoting Gall, 552 U.S. at 51). This review is “deferential,” requiring us to determine
“whether the sentence imposed by the district court fails to achieve the purposes of
sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005). “[W]e will not second guess the weight (or lack thereof) that the
[district court] accorded to a given factor ... as long as the sentence ultimately
imposed is reasonable in light of all the circumstances presented.” United States v.
Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and emphasis
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omitted), cert. denied, 131 S.Ct. 2962 (2011). We will “vacate the sentence if, but
only if, we are left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) factors by arriving at
a sentence that lies outside the range of reasonable sentences dictated by the facts of
the case.” See United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)
(quotation omitted), cert. denied, 131 S. Ct. 1813 (2011).
“[E]specially” in the context of child sex crimes, we “expect sentences within
the advisory guidelines range to be reasonable.” United States v. Sarras, 575 F.3d
1191, 1220 (11th Cir. 2009). Norton bears the burden of demonstrating that his
sentence is unreasonable. United States v. Turner, 626 F.3d 566, 573 (11th Cir.
2010).
As an initial matter, Norton did not preserve the issue of the district court’s
supposed failure to rule on his objections to the PSI for appeal. Moreover, he has not
shown that the district court committed error -- plain or otherwise. The record shows
that the district court considered and ruled upon his objections, specifically saying
after hearing Norton’s arguments that it would “adopt the findings of the [PSI],
including those where there have been objections.” In addition, Norton has not
attempted to show that any such error could have affected his substantial rights, and
has abandoned any argument on the merits of his objections.
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Nor has Norton shown that his sentence was unreasonable. While Norton
objected to his sentence based only on substantive unreasonableness and not on
procedural unreasonableness, under any standard of review, his sentence was
procedurally reasonable. There is no indication that the district court treated the
guidelines as mandatory or failed to consider the relevant § 3553 factors. The court
did not base the sentence on erroneous facts, and it offered a sufficient explanation
for its selection of the sentence it imposed.
The sentence, which was within the guideline range, was also substantively
reasonable. Receiving child pornography is a serious crime that victimizes children.
In addition to the seriousness of the offense, the district court was required to
consider the history and characteristics of the defendant, and the need to protect the
public from the defendant’s future criminal conduct. In this regard, Norton’s prior
convictions for sex offenses against children weigh strongly in favor of the
imposition of a lengthy sentence. The district court did not ignore any of the § 3553
factors. Rather, the record demonstrates that the court considered Norton’s arguments
regarding his ill health and other factors, and decided these factors were outweighed
by the need to protect the public and the seriousness of the offense. Because the
sentence reflects a proper balancing of the § 3553(a) factors, Norton has not met his
burden to show an abuse of discretion. Accordingly, we affirm the sentence as
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reasonable.
AFFIRMED.
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