United States v. Arron Norton , 557 F. App'x 615 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2583
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Arron Dean Norton
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: February 10, 2014
Filed: March 10, 2014
[Unpublished]
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Before SMITH, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
The district court1 sentenced Arron Norton to 360 months in prison, following
Norton's guilty plea to one count of sexual exploitation of a child in violation of 18
U.S.C. § 2251(a). Norton appeals, challenging the district court's application of a
four-level enhancement during its sentence calculation and the overall reasonableness
of his sentence. We affirm.
I. BACKGROUND
In March 2011, law enforcement identified Norton following a "cyber-tip"
submitted to the National Center for Missing and Exploited Children, as the result of
a posting by a self-described "horny father of one" seeking sexual activity with "a girl
in her teens to twentys [sic] 14 to 29." When approached by officers, Norton
admitted to making the posting and confirmed that he downloaded and viewed child
pornography, preferring images of minors ages eight to fifteen. A contemporaneous
search of Norton's home and an ensuing investigation of Norton's computers and
online accounts revealed emails between Norton and other individuals discussing
Norton's illicit activities with a four-year-old girl he was babysitting, along with
attached graphic images of Norton's acts with the victim. Norton admitted to officers
that he babysat the victim in the images, took the pictures with his cell phone and
transferred the images to his computer. A forensic review of Norton's computer
disclosed copies of twelve images of the victim and another 377 images of child
pornography. The forensic analysis further revealed fourteen video files of child
pornography.
On October 21, 2011, while a state case was pending against Norton, the
United States Attorney's office filed a four-count indictment against Norton. He was
charged with receiving and distributing child pornography, possessing child
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
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pornography, and two counts of sexual exploitation of a child. Norton pled guilty to
one count of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a). At
sentencing, the district court applied a four-level enhancement pursuant to United
States Sentencing Guidelines (U.S.S.G.) § 2G2.1(b)(4) for material portraying
sadistic or masochistic conduct or other depictions of violence and imposed a
sentence of 360 months, the top of the Guidelines range. Norton appeals.
II. DISCUSSION
First, Norton challenges the district court's application of a four-level
sentencing enhancement under U.S.S.G. § 2G2.1(b)(4) for offenses involving
"material that portrays sadistic or masochistic conduct or other depictions of
violence," which the Presentence Investigation Report (PSR) included in its
recommendation. "We review the district court's finding that the enhancement
applies for clear error." United States v. Dunn, 723 F.3d 919, 929-30 (8th Cir. 2013),
cert. denied, 82 U.S.L.W. 3406 (2014).
The Guidelines do not define the terms "sadistic," "masochistic," or "depictions
of violence," but we have concluded that sexual penetration of a minor female by an
adult male is per se sadistic. United States v. Belflower, 390 F.3d 560, 562 (8th Cir.
2004). Too, "[t]he enhancement . . . applies to material depicting sadistic,
masochistic, or violent conduct even if those pictured were not truly engaging in
painful activities." United States v. Cannon, 703 F.3d 407, 415 (8th Cir.) (quotation
omitted), cert. denied, 133 S. Ct. 2375 (2013).
The record below discloses images that at minimum show attempted
penetration by an adult male penis, as well as digital penetration and manipulation of
the victim's genitals. One image in particular, according to the PSR, shows an adult
male penis entering a prepubescent vagina. Norton vehemently maintains, however,
that the image only shows the tip of an adult male penis resting on or between, not
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penetrating, the victim's labia. Additionally, one of the images depicted Norton
having ejaculated onto the victim. Norton also possessed several hundred images of
child pornography, some of which depicted children in bondage. The record likewise
contains emails from Norton wherein he discusses the victim at issue here, which is
additional evidence of material depicting sadistic or violent conduct. See United
States v. Raplinger, 555 F.3d 687, 694-95 (8th Cir. 2009) (emphasizing that the
enhancement under U.S.S.G. § 2G2.1(b)(4) applies to material depicting sadistic or
violent conduct regardless of the subjective intent of the perpetrator or the actual
experience of the victim). In one recitation, Norton indicates that he "didn't do too
much with [the victim] today," because he only "tr[ied] very lightly to slip the tip in
her," and that he "would really love to get [the victim] opened up so she can take my
[penis] in-side [sic] her [where] it belongs."
On appeal, Norton argues that although one image in question indeed depicts
his bare penis against the victim's vagina, it does not depict any penetration and thus
is not per se sadistic for purposes of application of the enhancement. He additionally
argues that any reliance upon his statement that he "[tried] very lightly to slip the tip
in her," is wholly misplaced because the statement, and use of the verb "to try,"
actually proves that penetration was unsuccessful. But Norton's focus on the one
image is too myopic in scope.
In Belflower, in addition to noting this court's prior holding that images
involving sexual penetration of a minor girl are per se sadistic or violent within the
meaning of the Guidelines' enhancement at issue, the court established that "images
of an adult attempting such acts are likewise 'sadistic' or 'violent' for the purpose of
U.S.S.G. § 2G2.2(b)(3)." Belflower, 390 F.3d at 562. Given this court's precedent
in light of the entire record in this case, the district court committed no clear error
here. The district court relied upon the many images, together with Norton's own
words describing these heinous acts, and correctly applied the four-level enhancement
now challenged by Norton. Any attempt by Norton to argue that these images
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somehow do not portray "images of an adult attempting [sexual penetration of a
minor]" is disingenuous at best and will not be indulged by this court. Id.Second, in addition to claiming that the district court procedurally erred in
applying the four-level enhancement under U.S.S.G. § 2G2.1(b)(4), Norton
challenges the overall reasonableness of his sentence. We review the substantive
reasonableness of Norton's sentence under a "deferential abuse-of-discretion
standard." United States v. Manning, 738 F.3d 937, 947 (8th Cir. 2014) (quotation
omitted). "If the district court imposes a within-Guidelines sentence, this court
presumes the sentence is reasonable, and [Norton] bears the burden to rebut the
presumption." Id. We have carefully reviewed the record evidence in this matter as
well as the district court's sentencing colloquy discussing the 18 U.S.C. § 3553(a)
factors and find the district court did not abuse its discretion. Perhaps the district
court said it best:
[This offense] is among a handful of the most serious offenses this Court
has seen. It is serious for so many reasons, but it truly is this offense in
its very most aggravated form. I can't think of how this offense could
fit the definition of this crime in a more aggravated fashion for all of the
obvious reasons for that, for the abuse of a child, for the abuse of a little
child, for the abuse of a little defenseless child, for the photography, for
the sharing of it, for just the attempted justification of this behavior
which I find shocking.
III. CONCLUSION
For the reasons stated herein, we affirm.
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