974 F. 2d 1333 - United States America v. Norton

Ruth Ann Norton pled guilty to wire fraud (18 U.S.C.A. § 1343 (West 1984 & Supp. 1991)) and appeals the eighteen-month sentence she received. We affirm.

Norton requested a downward departure on the grounds that her mental and emotional conditions and significantly reduced mental capacity at the time of the offense contributed to her commission of the offense. The probation officer also recommended a departure for this reason. Norton presented psychiatric reports and testimony at the sentencing hearing. However, the district court determined that a departure was not justified. Norton now maintains that (1) the district court mistakenly believed that it lacked the authority to depart, and (2) due process was violated at sentencing in that the district court was predisposed against her because of her socio-economic status, which is not relevant to sentencing, see United States Sentencing Commission, Sentencing Guidelines, § 5H1.10 (Nov. 1990), and thus disregarded the evidence which was favorable to her.

Our review of the record reveals that the district court was quite aware of its authority to depart, and that Norton received a full and fair hearing on the issue of a departure. The district court's decision not to depart is not reviewable on appeal. United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 59 U.S.L.W. 3244 (U.S. 1990). Moreover, a sentencing court's consideration of the defendant's socio-economic status can become an issue only if there is a departure on that ground, or if the court decides where to impose sentence within the range on that ground. Socio-economic status does not enter into the calculation of the guideline range itself, which is determined solely by offense conduct. Here, Norton was sentenced at the lowest point of the guideline range, and she does not contend that the guideline range was incorrectly calculated.

We therefore affirm the judgment of the district court.* We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.