United States v. Norton

• Decision Date: 01 September 2022
• Docket Number: 21-1219
• Citation: 48 F.4th 124
• Parties: UNITED STATES of America v. Sarah NORTON, Appellant
• Court: U.S. Court of Appeals — Third Circuit

48 F.4th 124

UNITED STATES of America

v.Sarah NORTON, Appellant

No. 21-1219

United States Court of Appeals, Third Circuit.

Submitted: January 25, 2022

Filed: September 1, 2022

Christy Martin, Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant Sarah Norton

Sherri A. Stephan, Office of United States Attorney, 504 West Hamilton Street, Suite 3701, Allentown, PA 18101, Counsel for Appellee United States of America

Before: HARDIMAN, SHWARTZ, and FUENTES, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge.

Sarah Norton, a 38-year-old woman from Connecticut, communicated for several months with a fourteen-year-old boy living in Pennsylvania. These communications became overtly sexual, and on the night of October 14, 2017, she drove from Connecticut to Pennsylvania to meet the minor. The next morning, Norton met up with the minor in a park near his home. Soon after, the minor's parents discovered Norton's communications with the minor and notified law enforcement. In April 2018, Norton was charged with attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), and travel to engage in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b). In December 2019, a jury found Norton guilty of both charges. The District Court sentenced her to 168 months in prison followed by twenty years of supervised release. The Court also imposed special assessments of $200 under 18 U.S.C. § 3013 and $5,000 under the Justice for Victims of Trafficking Act of 2015, 18 U.S.C. § 3014 ("JVTA"). Norton appeals her sentence, arguing that the District Court based it on inaccurate information and thus violated her due process rights. She also asserts that the District Court erred when it imposed the $5,000 JVTA assessment because she is indigent. For the reasons below, we will affirm.

I.

In August 2017, Sarah Norton, a 38-year-old from Connecticut, began chatting with a fourteen-year-old boy living in Pennsylvania on a PlayStation gaming console. Norton was aware the minor was fourteen years old, and she falsely represented herself as being twenty-five years old. Norton kept exchanging messages with the minor for several months, sending increasingly sexually explicit messages¹ and pushing to see the minor in person.

Late on October 14, 2017, Norton traveled from Connecticut to Pennsylvania and checked into a hotel in Kutzown, Pennsylvania. The following morning, Norton met up with the minor for approximately two hours in a park near his home. That meeting was cut short because the minor had to go to lunch with his father and stepmother. Norton waited in the area for the minor to return from lunch. The parties contest exactly where she waited. Norton testified that she went back to the hotel and then to a festival at Orchard Farms. At sentencing, however, the Government argued that the "trial evidence," including "GPS records," "conclusively put[ ] her in th[e] park" waiting for the minor.²

The minor attempted to go back to the park after lunch but was stopped by his father. At that time, the minor's parents checked his electronic devices, including his phone and video games, and found the messages between the minor and Norton. The minor's parents then notified law enforcement and gave them consent to examine the minor's electronic devices.

In April 2018, Norton was indicted by a grand jury and charged with attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), and travel to engage in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b). Norton proceeded to trial, where she testified that she did not travel to Pennsylvania with the intent to have sex with the minor. Norton, however, admitted that she traveled to Pennsylvania to meet him, and did not object to the Government's cell site evidence.³ She also admitted to sending the minor sexually explicit messages. On December 11, 2019, the jury found Norton guilty of both charges.

After briefing and a hearing, the District Court found Norton's Guidelines range to be 151 to 188 months of imprisonment. That calculation included a two-point enhancement for misrepresenting her age to the minor, U.S.S.G. § 2G1.3(b)(2)(A) ; a two-point enhancement for using a computer to perpetrate the offense, U.S.S.G. § 2G1.3(b)(3)(A) ; and a two-point enhancement for obstruction of justice for making a materially false statement during her trial testimony, U.S.S.G. § 3C1.1. Norton objected to the two-level enhancements for misrepresenting her age to the minor and for making a materially false statement during her trial testimony. Norton's counsel continued to press Norton's contention that she did not travel across state lines to have sex with the minor and argued that Norton's misrepresentation of her age had no effect on the offense.

The Government responded that Norton's lie about her age was a key factor that enabled her to commit her crimes. The Government also asserted that, because the jury found Norton guilty of travel to engage in illicit sexual conduct with a minor, it also concluded, beyond a reasonable doubt, that Norton necessarily lied when she testified otherwise. Next, the Government argued that Norton lied in other ways, including by testifying at trial that she never went back to the park to meet the minor in the afternoon, when, in fact, she did. According to the Government:

[A]t 3:31 p.m. – she's saying: She's about to leave, so you're sure about not seeing me? Now, the victim's parents already knew what was going on, so the victim is not responding at this point. At 3:55, she said: Okay, I waited some more and no reply. I feel so, so very stupid. At 3:29, she said: I've waited long enough for empty promises. And what we know during this time, is that when she is sending these text messages, her phone is hitting in the same park she met the victim in that morning. So, the trial evidence conclusively puts her in that park at that time, where she said, she was not. That is a complete perjured statement. Your Honor, again, I don't think it gets any more clear than that, she was there, her text messages prove it, she wasn't on her way home at that point in time, she was sitting in the park waiting for the victim, telling him, she feels stupid and where is he?⁴

The District Court overruled Norton's objections and sentenced her to 168 months in prison followed by twenty years of supervised release. It also imposed a special assessment of $200 under 18 U.S.C. § 3013 and a special assessment of $5,000 under the JVTA. In imposing this sentence, the District Court stated:

As to the nature and circumstances of the offense, the defendant's sexually-explicit communications with the minor—the victim—occurred over several months.

The defendant misrepresented her age and the fact that she did not have children in order to entice the minor victim to engage in illicit sexual conduct. The defendant's chats, e-mails and text messages grew increasingly explicit over time.

When the minor victim did not respond as the defendant wanted, she got angry at him.

The defendant, who has three children of her own, one several years older than the minor victim and one, approximately, the same age, should have known how damaging her conduct would be to a fourteen-year-old boy.

The letter from the minor victim's father, who was also, himself, impacted by the defendant's crimes, has explained in detail, the negative behavioral changes in the minor victim, both at home and in school that resulted from the defendant's conduct.

The minor victim talked about suicide and running away. The minor victim was put on medication and was diagnosed with certain medical conditions. Despite counseling and the passage of time, the minor victim's father remains concerned about his son's safety.

Even now, the defendant fails to recognize the seriousness of her conduct and has refused to fully accept responsibility for her actions.⁵

Although the District Court found that Norton could not pay a fine, it still imposed the JVTA assessment, finding that Norton had "the ability to pay a JVTA assessment over the length of her sentence" considering that she "can work while incarcerated and again, after her release as well as her education and work history."⁶ It recommended that Norton participate in the Bureau of Prisons' Inmate Financial Responsibility Program and make a minimum payment of $25.00 per quarter towards the assessment.

Norton timely appealed her sentence, arguing that her due process rights were violated because the District Court based her sentence on inaccurate information. She also argues that the District Court erred when it imposed a $5,000 JVTA assessment because she is indigent. Because Norton did not object to these alleged errors during her sentencing hearing, the errors were not preserved. Norton raises these issues for the first time on appeal.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).⁷ We review unpreserved objections arising out of sentencing hearings for plain error:⁸

To establish eligibility for plain-error relief, a defendant must satisfy three threshold requirements. First , there must be an error. Second , the error must be plain. Third , the error must affect "substantial rights," which generally means that there must be "a reasonable probability that, but for the error, the outcome of the proceeding would have been different." If those three requirements are met, an appellate court may grant relief if it concludes that the error had a serious effect on "the fairness, integrity or public reputation of judicial proceedings."⁹

III.

A.

"[I]t is well settled that a defendant has a due process right to be sentenced based upon accurate information."¹⁰ Indeed, "we have explained that information relied upon at sentencing must have ‘sufficient indicia...