U.S. v. Nurek

• Decision Date: 21 August 2009
• Docket Number: No. 07-3568.,07-3568.
• Citation: 578 F.3d 618
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph T. NUREK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

578 F.3d 618

UNITED STATES of America, Plaintiff-Appellee, v. Joseph T. NUREK, Defendant-Appellant.

No. 07-3568.

United States Court of Appeals, Seventh Circuit.

Argued September 3, 2008.

Decided August 21, 2009.

Rehearing and Rehearing En Banc Denied September 15, 2009.

Julie B. Ruder (argeud), Office of U.S. Attorney, Chicago, IL, for Plaintiss-Appellee.

Daniel T. Cook (argued), Office of Federal Public Defender, Springfield, IL, Jonathan E. Hawley, Chief Assistant Public Defender, Richard H. Parsons, Office of Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and ROVNER and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Joseph Nurek pleaded guilty to receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and was sentenced to 240 months in prison, the statutory maximum. On appeal Nurek challenges the district court's application of the two-level sentencing guidelines enhancement for obstruction of justice, see U.S.S.G. § 3C1.1; the government's refusal to move for a third-point reduction in his offense level for acceptance of responsibility, see U.S.S.G. § 3E1.1(b); the district court's use of the 2006 Guidelines Manual (in effect at the time of sentencing) instead of the 2003 Guidelines Manual (in effect at the time of his offense); and the overall reasonableness of his sentence. We reject these challenges and affirm.

I. Background

Joseph Nurek has a Ph.D. in education and worked as a principal at various elementary and middle schools in Michigan and Illinois from 1984 until 2004. In March 2004 federal agents executed a search warrant at Nurek's Chicago home looking for evidence of child pornography. Nurek's computer was seized and forensic analysis revealed that he had stored thousands of downloaded images of child pornography on it. At the time, the agents were also investigating Nurek for sexually abusing three children, whom we refer to as Victims A, B, and C. The alleged abuse of Victims A and C occurred in the early 1990s in Michigan; the alleged abuse of Victim B, in contrast, was ongoing at the time of the search.

In 1991 Nurek was charged in Michigan state court with sexually abusing a student from the middle school where he was the principal; a second count alleged that Nurek distributed obscene material to the child. The Michigan investigation had initially involved two student victims, but the State proceeded on charges involving only one victim because the second child did not want to testify. (The 2004 investigation into the alleged abuse of Victims A and C involved different children—who were by then adults—although the abuse dated from the same general time period as the Michigan prosecution.) The sexual-abuse count in the Michigan case was dismissed at the preliminary hearing after the judge held that the child's description of Nurek's conduct did not constitute "sexual contact" under Michigan law. Nurek was acquitted by a jury on the remaining charge that he distributed obscene material to a minor.

Cleared of these charges, Nurek moved to Illinois and began applying for teaching and administrative jobs at schools in and around Chicago. He did not disclose the sexual-abuse and obscenity-distribution charges involved in the Michigan prosecution. He was eventually hired as principal of a school for the developmentally disabled in Chicago and later became principal of a school for emotionally disturbed children in Arlington Heights, Illinois. In 2000 he became principal of the Chicago International Charter School, where Victim B was a student.

Victim B and his mother and siblings were living in a homeless shelter at the time. At some point the family moved to Elgin, Illinois, which was too far away for Victim B to commute to the Charter School. To enable her son to continue to attend the Charter School, Victim B's mother signed a document purporting to give Nurek temporary custody of Victim B, and in August 2003, just before the start of his seventh-grade school year, Victim B moved in with Nurek. From then until the March 2004 search, Nurek repeatedly sexually abused Victim B. When federal agents questioned Nurek during the execution of the search warrant, however, he denied ever having molested any children. He also told the agents that the computer they seized was the only one he possessed.

Nurek was arrested and a magistrate judge eventually released him on bond. As a condition of his release, he was prohibited from having any contact with Victim B or Victim B's family. Nurek violated this order on numerous occasions: He called Victim B's family on the phone, visited them at their home, gave them several thousand dollars, had Victim B's brother over to his house, sent a personal letter to Victim B, and proposed marriage to Victim B's mother. More specifically, Nurek frequently talked to Victim B's family members on the phone and visited with them in person on several occasions. He gave Victim B's brother and mother more than $2000 each. He told Victim B's mother that he loved her and asked her to run away with him and get married so they could be "one big happy family." In his letter to Victim B, Nurek said he was sorry and that he wanted to be "a good dad to you" and that he loved Victim B "as a good father loves his son." Based on these violations of his pretrial release order, Nurek's bond was revoked and he was returned to custody.

While he was still free on bond, however, Nurek contacted Chicago police to report the unexplained presence of drugs at his home. Police responded, spoke to Nurek and his attorney, and received permission to search his garage, where Nurek said he had seen the drugs. Among other discoveries in the garage, the police found a computer hard drive with holes drilled in it, sitting in about six inches of gasoline in a bucket hidden behind some shovels. Nurek told the officers he was trying to destroy tax-return information on the computer. Attempts to retrieve information from the computer were unsuccessful.

Nurek was indicted on seven counts of receiving child pornography and one count of possessing child pornography. A superseding indictment later added two counts of transporting a minor across state lines to engage in sexual conduct. One of these counts involved conduct against Victim B; Nurek took him from Illinois to Wisconsin for purposes of sexual conduct. Nurek traveled with the other minor victim between Illinois and Michigan for the same purpose. After lengthy pretrial proceedings, Nurek pleaded guilty to a single count of knowingly receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).

In calculating Nurek's advisory sentencing guidelines range, the district judge used the 2006 Guidelines Manual in effect at sentencing rather than the 2003 Guidelines Manual in effect when the offense was committed. The 2006 Guidelines Manual suggested a base offense level for Nurek that was five levels higher than the level suggested under the 2003 Guidelines Manual. The judge also applied a two-level enhancement for obstruction of justice. See U.S.S.G. § 3C1.1. The presentence report offered two evidentiary bases for this enhancement: Nurek's destruction of the computer hard drive found in the bucket of gasoline in his garage after his release on bond, and his repeated contacts with Victim B and his family in violation of the terms of his pretrial release order. The district judge rejected the first basis, characterizing Nurek's successful obliteration of his computer hard drive as raising only a "mere suspicion." The judge accepted the second basis, however, finding that Nurek had attempted to influence Victim B and exert control over Victim B's family through his continuous contacts with them in violation of his pretrial release order. Finally, over the government's objection, the judge applied a two-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). The government refused to request an additional one-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(b), and the district court noted that it had no discretion to grant Nurek the third point without a motion by the government.

The resulting advisory guidelines range was 292-365 months, well above the statutory maximum of 240 months, so the range defaulted to the statutory maximum. See U.S.S.G. § 5G1.1(a). The district court considered Nurek's arguments in mitigation, including his claim, based on an expert opinion from a clinical psychiatrist, that he was a good candidate for a shorter sentence and sex-offender treatment. The judge thought Nurek's conduct was too serious and his risk of recidivism too great to justify a shorter sentence and imposed the maximum sentence of 240 months.

II. Discussion

Nurek challenges his sentence on four grounds: (1) he claims the district court erred by applying the two level obstruction-of-justice enhancement under § 3C1.1; (2) he claims he should have received an additional one-point reduction for acceptance of responsibility under § 3E1.1(b) even though the government did not move for the reduction; (3) he claims the district court violated the Ex Post Facto Clause by using the 2006 Guidelines Manual rather than the 2003 Guidelines Manual; and (4) he claims that 240 months is an unreasonable sentence. None of these arguments has merit.

A. Obstruction of Justice

Nurek argues that the district judge erred by imposing the two-level enhancement for obstruction of justice under § 3C1.1 of the guidelines. That provision states that a judge may increase the defendant's offense level by two levels "[i]f (A) the defendant willfully obstructed or impeded ... the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense." U.S.S.G. § 3C1.1....