United States v. Bour

• Decision Date: 27 October 2015
• Docket Number: 15–1090.,Nos. 14–2211,s. 14–2211
• Citation: 804 F.3d 880
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Christopher BOUR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

804 F.3d 880

UNITED STATES of America, Plaintiff–Appellee

v.Christopher BOUR, Defendant–Appellant.

Nos. 14–2211

15–1090.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 2015.

Decided Oct. 27, 2015.

David E. Hollar, Attorney, Jill R. Koster, Attorney, Abizer Zanzi, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before MANION, ROVNER, and HAMILTON, Circuit Judges.

Opinion

MANION, Circuit Judge.

Christopher Bour paid a woman named Natisha for permission to molest, rape, and create pornographic films of her infant daughter—and, not content with these crimes, he also took explicit photographs of Natisha's four-to-five-year-old daughter. After Bour invited a woman called TJ to watch him “play with” the littlest girl, TJ informed the FBI and a criminal investigation launched. Bour pleaded guilty on five counts, while Natisha was separately sentenced for her role in this grisly treatment of her daughters. Bour now challenges his sentence, supervised-release conditions, and restitution order. We affirm.

I. Background

Bour and Natisha met on seven or eight occasions for Bour to molest Natisha's younger daughter, known here as Jane Doe, who was four to eighteen months old during the abuse. Bour sexually touched Jane Doe, penetrated her mouth and genitals, and filmed at least two encounters with her. He also photographed the genitals of Natisha's older daughter, Jane Doe II, who was then three to five years old.

After his indictment, Bour pleaded guilty to purchasing a child for the production of child pornography under 18 U.S.C. § 2251A(b), three counts of producing child pornography under 18 U.S.C. § 2251(a), and one count of possessing child pornography under 18 U.S.C. § 2252(a)(4). At his sentencing hearing, he objected to the sentencing memorandum's discussion of homemade videos, which show him masturbating on a bedspread that is identical to a bedspread seen in a Jane Doe video. Among other things, the videos show Bour licking an object after removing it from his rectum. Bour argued against the videos as prejudicial, irrelevant, and not offense conduct. The district judge admitted the description of Bour's masturbation videos as relevant and as useful to the Bureau of Prisons.

Bour was sentenced to life for purchasing a child for the production of pornography and to 1,020 consecutive months (85 years) on the remaining counts. On top of this, the judge imposed lifetime supervised-release conditions for each count, including the conditions of release that Bour challenges here.

At sentencing, the district judge accepted the government's assertion that restitution damages could not be ascertained until post-sentencing, while noting that he was statutorily required to decide restitution within 90 days of sentencing. Bour was sentenced on May 15, 2014. In an order dated 89 days post-sentencing, the district judge found “restitution to be applicable” and took the amount under advisement. On January 5, 2015, 235 days after sentencing, the district court ordered Bour to pay $75,000 in restitution.

II. Analysis

On appeal, Bour argues that the district court erred in considering the sentencing-memorandum discussion of his masturbation videos. He also urges that the sentencing court erred in imposing consecutive terms of imprisonment, rather than concurrent terms. Bour further challenges the supervised-release conditions imposed at sentencing. Finally, he contends that restitution was ordered too late to bind him.

A. Bour's Masturbation Videos

In objecting to the district court's consideration of the masturbation-video descriptions, Bour's argument on appeal is based on a claimed Fifth and Fourteenth Amendment right to privacy. He contends that, because the conduct depicted in his videos is not unlawful, it should have been excluded.

When a defendant is sentenced, Congress provides that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. The only limits on this are expressly enumerated: characteristics like race, national origin, and religion may not be considered at sentencing and, whatever information is considered, it must be accurate. See Pepper v. United States, 562 U.S. 476, 489 n. 8, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (citing United States v. Leung, 40 F.3d 577, 586 (2d Cir.1994) ); see also U.S.S.G. § 5H1.10 ; see also United States v. Guajardo–Martinez, 635 F.3d 1056, 1059 (7th Cir.2011) (citing United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) ) (citations omitted).

Bour urges that the conduct in his videos is beyond consideration because the Supreme Court provided constitutional protection to “certain intimate conduct” in Lawrence v. Texas, 539 U.S. 558, 562, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). The fact that conduct is legal, however, does not mean that a sentencing court is barred from considering it. Instead, the Guidelines, statutory law, and Constitution only limit consideration of certain enumerated characteristics. The video summaries discussed Bour's actions, not his race, creed, or any other constitutionally protected characteristic. Four of Bour's five counts involve production of child pornography. His masturbatory conduct was relevant to the sentencing decision because the videos demonstrated that Bour took pleasure in producing graphic films. There was no error in considering these facts.

B. Consecutive Sentences

Next, Bour argues that the district court erred by imposing consecutive terms of imprisonment, rather than concurrent terms. We review Bour's criminal sentence in two steps: first for procedural error, then for substantive reasonableness. United States v. Warner, 792 F.3d 847, 855 (7th Cir.2015) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ).

1. Procedural error

When reviewing a criminal sentence for procedural error, we apply de novo review. United States v. Annoreno, 713 F.3d 352, 356 (7th Cir.2013) (citing United States v. Marin–Castano, 688 F.3d 899, 902 (7th Cir.2012) ).

At Bour's sentencing, the district judge found that “[t]he guideline range in this case is up to life.” Sentencing Tr. 42. The judge then imposed a life sentence for purchasing a child for the production of pornography, plus 1,020 consecutive months on the remaining counts. Bour contends that the district judge erred in failing to explain why he imposed consecutive sentences.

We examine whether the district court abused its discretion by imposing consecutive rather than concurrent terms. The Guidelines state that, “[i]f the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences on all counts shall run concurrently, except to the extent otherwise required by law.” U.S.S.G. § 5G1.2(c) (emphasis added). If the sentence with the highest statutory maximum “is less than the total punishment,” the district court may run counts consecutively. U.S.S.G. § 5G1.2(d). And though the Guidelines prefer concurrent sentences, “undoubtedly a sentencing court enjoys broad discretion in deciding” whether to run concurrent or consecutive terms. United States v. Morgano, 39 F.3d 1358, 1366 (7th Cir.1994) (citations omitted).

If a district court goes above the Guidelines, it must adequately explain its reasons. United States v. Stinefast, 724 F.3d 925, 932 (7th Cir.2013) (citing United States v. Taylor, 701 F.3d 1166, 1174 (7th Cir.2012). This court will not find error when a district court goes above the Guidelines “based on factors ‘sufficiently particularized to the individual circumstances of the case.’ ” United States v. Jackson, 547 F.3d 786, 792–93 (7th Cir.2008) (citations omitted). We also will not find a sentence “procedurally unreasonable as long as the totality of the record establishes that the district court considered the arguments in mitigation, even if implicitly and imprecisely.” United States v. Cheek, 740 F.3d 440, 456 (7th Cir.2014) (citations omitted) (internal marks omitted)).

At sentencing, the district judge explained that he had “gone through this indictment, the evidence, the pretrial, time and time again.” Sentencing Tr. 28. He “tr[ied] to consider all factors,” “look[ed] at trying to give [Bour] a sentence no more than is absolutely necessary,” and “considered all of the 3553(a) factors that [Bour's] attorney brought out in his memorandum.” Id. at 28, 32, 37. While he considered Bour's need for psychological help, he also told Bour that “the crime that you have committed is so horrific, I can go through the definition of all the different things that I have had in sexual cases and almost every one of those applies to you that you did on this infant.”Id. at 34. As a result, there was “no question that the crime here is probably one of the most serious that we have in this [c]ourt.” Id. at 35. On this record, we find that the district court considered mitigation, concluded that Bour's crimes required a punishment of life plus consecutive terms, and sentenced accordingly.

By imposing a life sentence, plus 1,020 consecutive months, the district judge was also sending a distinct message about how society views the horrible crimes that Bour committed. The judge explained that any sentence must seek to “deter other Christopher Bours, if they can think logically, if they're not blinded by their desires, [and communicate that] society is not going to allow this. This Court is not going to allow this. I am not going to allow this. We have to have a deterrent, and the penalty is very, very high for doing it.” Sentencing Tr. 35. On the facts that...