United States v. Bordman, 17-2395

• Decision Date: 17 July 2018
• Docket Number: No. 17-2395,17-2395
• Citation: 895 F.3d 1048
• Parties: UNITED STATES of America Plaintiff-Appellee v. Michael BORDMAN Defendant-Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

895 F.3d 1048

UNITED STATES of America Plaintiff-Appellee

v.Michael BORDMAN Defendant-Appellant

No. 17-2395

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2018

Filed: July 17, 2018

Rehearing and Rehearing En Banc Denied August 23, 2018^*

Mark Tremmel, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Cedar Rapids, IA, for Plaintiff-Appellee.

Michael Bordman, U.S. PENITENTIARY, Tucson, AZ, Heather Quick, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Cedar Rapids, IA, for Defendant-Appellant.

Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

SMITH, Chief Judge.

Michael Bordman appeals his sentence after pleading guilty to sexual exploitation of a child and possession of child pornography. He argues that the district court¹ plainly erred in its factual analysis of his history of victimization and imposed a substantively unreasonable sentence of 600 months' imprisonment. He also argues that the district court abused its discretion in awarding $3,000 in restitution to a child-pornography victim whose videos he possessed. Finally, he argues that the court erred in imposing two special conditions of supervised release related to Bordman's use of pornography and erotica. We affirm the judgment of the district court.

I. Background

Bordman pleaded guilty to sexual exploitation of a child and possession of child pornography involving a prepubescent minor or a minor who had not attained 12 years of age. The presentence investigation report (PSR) recounted Bordman's offense conduct. In July 2016, Google submitted three cybertips to the National Center for Missing and Exploited Children (NCMEC) concerning child pornography images uploaded to Boardman's account. An image uploaded on August 29, 2015, depicted Bordman's penis pressed against the mouth of N.B., his one-and-a-half-year-old daughter. This account also contained an image of Bordman displaying his penis as N.B., sitting in a stroller, looked up at it.

Bordman used a cell phone and the Kik Messenger service to send child pornography to and receive child pornography from others. On July 4, 2016, while using the Kik Messenger service to chat with another man, Bordman re-posted one of the images with his daughter he had uploaded in 2015. Bordman then posted several more pornographic images of N.B. at the man's request. Bordman also sent pornographic depictions of N.B. to two other persons and told others about his sexual abuse of N.B. In addition, Bordman sent child pornography to other Kik members and to an acquaintance. He stored child pornography in his Dropbox account, including depictions of adult males sexually penetrating toddlers and infants. Included in Bordman's Dropbox account was a "Sweet Sugar" Internet child pornography series. Two of the videos in the series depicted a victim known as "Pia."

The PSR included information describing the sexual abuse that Bordman endured as a child. Bordman reported that both of his parents were convicted and imprisoned for sexually abusing him and his sisters. His father died while in prison. Bordman was approximately three to four years old at the time of the abuse. His parents forced him to engage in sexual contact with his two sisters, who were ages nine and six at the time. Court records reflected the convictions and sentences of Bordman's parents for the sexual abuse. In one court opinion, the court recounted Bordman's father's admission to sexually abusing Bordman and Bordman's subsequent examination by a pediatric nurse confirming injuries consistent with abuse. After his parents' imprisonment, Bordman spent the remainder of his childhood in foster or group homes.

The PSR calculated a total offense level of 43 and a criminal history category of I, resulting in an advisory Guidelines range of life imprisonment. But because Bordman's statutory maximum sentence was less than the maximum of the applicable Guidelines range, his Guidelines range became 600 months' imprisonment. See U.S.S.G. § 5G1.1(b).

Prior to sentencing, an attorney representing three victims, including Pia, in the "Sweet Sugar" Internet child pornography series submitted a restitution request. The government then submitted a supplemental sentencing memorandum and attached three exhibits. Exhibit 1 contained the restitution request and supporting documentation. The documentation included a victim impact statement by Pia's mother, a report from psychologist Dr. Marsha Hedrick, and an attorney costs declaration. Dr. Hedrick estimated that the costs to Pia, including therapy, related expenses, and a vocational assessment and counseling, would be $91,900. Pia's attorney estimated that her costs incurred (excluding attorney's fees) were $10,187.13. Exhibit 2 contained relevant pages from a NCMEC report, including information on three child pornography videos from this series that Bordman possessed in his Dropbox account. In its supplemental sentencing memorandum, the government added one-third of the attorney's costs (because the attorney represented three victims in the "Sweet Sugar" series) to Dr. Hedrick's estimate, resulting in a total of $95,295.71.

Exhibit 3 contained information from the U.S. Department of Justice listing defendants previously ordered to pay restitution to each of the three victims. The government noted that Exhibit 3 listed 31 other defendants who had been ordered to pay restitution to Pia or to all three victims. Dividing $95,295.71 by 32 (including Bordman) resulted in a restitution amount of $2,977.99. But the government noted that this figure did not account for other factors. The government identified as a relevant factor the degrading treatment of Pia in the video and how its dissemination harmed Pia. As a recipient of that video, Bordman contributed to Pia's harm. Based on its submission, the government recommended a restitution amount of $3,000.

At sentencing, the district court adopted the undisputed recommendations in the PSR and calculated a Guidelines range of 600 months' imprisonment. The court asked Bordman whether he should pay $3,000 in restitution to Pia. Bordman's counsel replied that Bordman challenged the amount the government requested. Bordman did not object to the admission of Exhibits 1, 2, and 3.

In addition, the parties stipulated that an additional defendant had been ordered to pay restitution to Pia, which increased the number of defendants to 32 from 31 listed in Exhibit 3. The government then clarified that if one divided $95,295.71 by 33 (the 32 defendants who already had paid restitution plus Bordman), the resulting figure was $2,887.75.

Investigator Joshua Bell of the Cedar Rapids Police Department then testified about the child pornography found in Bordman's Dropbox account. He testified that Exhibit 2 contained the filenames of three files from Bordman's Dropbox account relating to the "Sweet Sugar" series. According to Bell, an investigator identified Pia as the victim depicted in two of the videos, which were identical. Pia was approximately four years old when the child pornography of her was produced. Bell testified that, in comparison with other child pornography depictions he had observed, these identical videos were "more graphic." Redacted Sentencing Transcript at 20, United States v. Bordman , No. 1:16-cr-00081-LRR-1 (N.D. Iowa June 12, 2017), ECF No. 65-1. Bell did confirm, however, that Bordman was not depicted in these identical videos and that he had no information that Bordman was involved in producing the videos of Pia.

Following Bell's testimony, the government discussed several factors affecting the calculation of a restitution award in this case. In addition to the "numerical calculation," these factors include the child pornography being videos instead of images; there are two copies of the same video in different folders; the "very aggravating factor" of the nature of the video; and the resulting harm to the victim. Id. at 23–24.

Thereafter, Bordman's counsel renewed Bordman's objections to two special conditions of supervised release. The conditions related to Bordman's use of pornographic and erotic materials. Bordman also requested that the court vary downward to 15 to 20 years' imprisonment.

The district court overruled Bordman's objections to the special conditions of supervised release, and, relevant to this appeal, imposed the following two conditions:

2) The defendant must not operate or use photographic equipment, a computer, or any electronic storage device to view or produce any form of pornography or erotica.

3) The defendant must not own or possess any pornographic materials. The defendant must not use any form of pornography or erotica nor enter any establishment where pornography or erotica can be obtained or viewed.

Judgment at 4, United States v. Bordman , No. 1:16-cr-00081-LRR-1 (N.D. Iowa June 13, 2017), ECF No. 54.

The court also declined to vary downward and, after evaluating the 18 U.S.C. § 3553(a) factors, it sentenced Bordman to 600 months' imprisonment. In evaluating the § 3553(a) factors, the court addressed Bordman's argument that he was a sexual abuse victim, stating, "In terms of his own reported abuse as a child, I want to make sure that it's understood that there is no cause and effect relationship between being a victim of child abuse and victimizing children as an adult, and there's nothing in this record that makes that assertion." Redacted Sentencing Transcript at 33. Bordman did not object to the court's statement.

The court also ordered Bordman to pay $3,000 in restitution to Pia, the amount recommended by the government.

II. Discussion

On appeal, Bordman argues that the district court plainly erred in essentially dismissing his history of victimization. He also argues his sentence of 600 months' imprisonment is substantively unreasonable. In addition, he contends that the district court abused its discretion in awarding $3,000 in restitution to Pia. Finally, Bordman argues that the court erred in imposing...