United States v. Joseph Nurek ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3568
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSEPH T. N UREK,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 333—Wayne R. Andersen, Judge.
A RGUED S EPTEMBER 3, 2008—D ECIDED A UGUST 21, 2009
Before E ASTERBROOK, Chief Judge, and R OVNER and
S YKES, Circuit Judges.
S YKES, 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 chal-
lenges 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
2 No. 07-3568
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 re-
vealed 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
No. 07-3568 3
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
4 No. 07-3568
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 con-
tacted 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 com-
No. 07-3568 5
puter 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 pornogra-
phy. 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 Wis-
consin 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 sug-
gested 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
6 No. 07-3568
family in violation of the terms of his pretrial release
order. The district judge rejected the first basis, characteriz-
ing Nurek’s successful obliteration of his computer hard
drive as raising only a “mere suspicion.” The judge ac-
cepted 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 responsi-
bility. See U.S.S.G. § 3E1.1(a). The government refused
to request an additional one-level reduction for ac-
ceptance 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 govern-
ment.
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-
No. 07-3568 7
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 sen-
tence. 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 convic-
tion and any relevant conduct; or (ii) a closely related
offense.” U.S.S.G. § 3C1.1. Here, the district judge
imposed the enhancement because Nurek violated the
terms of his pretrial release order by repeatedly con-
tacting Victim B and his family in an attempt to maintain
control over the family and otherwise influence their
willingness to cooperate with the prosecution.1
1
Because we agree with the district court’s application of the
obstruction-of-justice enhancement based on Nurek’s contact
(continued...)
8 No. 07-3568
Nurek argues first that the facts do not support a
finding of obstruction of justice. He cites United States v.
Scott for the proposition that obstruction under § 3C1.1
only occurs when the defendant makes it “more costly or
otherwise more difficult for the government to prosecute
its case.” 405 F.3d 615, 618 (7th Cir. 2005). Nurek contends
that he did not threaten or intimidate Victim B and his
family, but instead had only “friendly” conversations
and other innocent communications with them. He
argues that these contacts were intended to maintain
his “close relationship” with them and persuade them
not to initiate a civil lawsuit against him, not to make it
more difficult for the government to prosecute the child-
pornography charges.
We are not persuaded. Under the circumstances,
no reasonable judge would be. Nurek’s benign inter-
pretation of the facts is not remotely plausible. Viewed in
context and in light of Nurek’s history, these particular
bond violations can only be understood as insidious
attempts at victim manipulation. This kind of behavior
by a man in Nurek’s position cannot possibly be passed
off as mere “friendly” concern and disinterested generos-
ity. Nurek was facing multiple felony child-pornography
counts and the likelihood of spending the rest of his life in
prison if convicted; the possibility of a civil suit was the
1
(...continued)
with Victim B and his family, we need not address the alterna-
tive ground for the enhancement—that is, Nurek’s destruction
of his computer hard drive while out on bond.
No. 07-3568 9
least of his problems. Nurek’s letter to Victim B is particu-
larly revealing; in it Nurek tells Victim B that he loves
him, misses him, and wants to take care of him and be
“a good dad” to him. Then he closes the letter with a
caution: “Don’t say anything to anyone about this let-
ter—this letter is for you! Don’t slip, the agents are just
waiting for something like this.”
The district court was quite right to conclude that this
conduct was intended to hamper the prosecution. Victim
B had seen Nurek viewing and masturbating to child
pornography multiple times and therefore was an eye-
witness to the child-pornography offenses. Moreover,
Nurek’s molestation of Victim B was as yet unknown
(though suspected) and, unlike the Michigan victims,
was recent and more readily provable provided Victim B
felt safe enough to cooperate with the prosecution.
Indeed, Nurek’s cynical manipulation of Victim B
and his family had the desired effect of inhibiting the
prosecution; it was only after Nurek’s bond was revoked
that Victim B revealed Nurek’s past sexual abuse. The
superseding indictment subsequently added the charges
of transporting a minor across state lines to engage in
sexual conduct. On the totality of these facts, it would
have been error not to apply the obstruction enhancement.
Nurek also argues that the district court did not make
adequate findings on Nurek’s specific intent to obstruct
justice. For an obstruction-of-justice enhancement to
apply, the government must establish by a preponderance
of the evidence that the defendant had the specific intent
to obstruct justice. United States v. Dale, 498 F.3d 604, 609
10 No. 07-3568
(7th Cir. 2007). This intent requirement stems from lan-
guage in the guideline requiring that the defendant
“willfully obstruct[] . . . or attempt[] to obstruct” justice.
U.S.S.G. § 3C1.1 (emphasis added). However, the sen-
tencing judge is not required to parrot back the “willful”
language of the guideline when deciding that an obstruc-
tion enhancement is appropriate. Rather, we have sug-
gested that the enhancement is appropriate as long as
the district court “includes implicitly a finding that
[the defendant] intended to obstruct justice.” Dale, 498
F.3d at 609.
Here, the district court’s findings, while somewhat
unclear, were sufficient to support the obstruction en-
hancement. The court acknowledged the possibility that
Nurek might have had mixed motives for contacting
Victim B’s family but held that “one of the reasons that you
had a dialogue with them was that you hoped that that
would ameliorate the consequences of the arrest and
charges.” The judge said: “I believe that . . . one of the
motives was to promote a positive relationship, insofar
as it was possible, with [Victim B’s family]—and that
was at a time when you hadn’t pled guilty and the legal
state of things was uncertain—and so I believe that ob-
struction of justice for that is an appropriate enhance-
ment.”
Nurek maintains that the court’s only explicit “finding”
was that Nurek was trying to “promote a positive rela-
tionship” with the family—not enough, he says, to
support a finding of intent to obstruct. He also notes
that the judge said he was making “a very subjective
No. 07-3568 11
judgment” and “could be wrong” and “might be wrong.”
It is not clear what moved the court to add this
gratuitous postscript, but we see it as just that—a wholly
gratuitous statement or at most a commentary on the
inherent difficulty of evaluating motive or intent. Either
way, it does not undermine the court’s ruling. When
read in context and in their entirety, the court’s remarks
on the application of the obstruction enhancement
contain an implicit finding that Nurek intended to obstruct
the prosecution. That is enough to sustain the two-level
enhancement.
B. Acceptance of Responsibility
The effect of the obstruction enhancement was wiped
out, however, when the district court applied a two-level
reduction in Nurek’s offense level for acceptance of
responsibility. See U.S.S.G. § 3E1.1(a). The judge
thought the acceptance-of-responsibility reduction was
warranted because Nurek did not take any positions
inconsistent with the government’s allegations and
agreed to pay restitution to the victims of his sexual
abuse. Nurek also argued for the third acceptance-of-
responsibility point under subsection (b) of § 3E1.1. The
government objected; it was opposed to any acceptance
of responsibility reduction, and having lost that battle,
refused to move for the extra point under § 3E1.1(b).
The judge said he could not consider the third-point
reduction in the absence of a motion from the govern-
ment. This was manifestly correct. The guideline specifi-
cally states that an additional one-level reduction for
12 No. 07-3568
acceptance of responsibility is possible only if the gov-
ernment requests it; an additional one-point reduction
is awarded “upon motion of the government stating
that the defendant has assisted authorities in the investiga-
tion or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea of
guilty, thereby permitting the government to avoid prepar-
ing for trial and permitting the government and the
court to allocate their resources efficiently.” U.S.S.G.
§ 3E1.1(b).
Here, the government refused to move for the addi-
tional reduction because Nurek only pleaded guilty to
one of ten counts, he frivolously contested the obstruction-
of-justice enhancement, he showed no real remorse for
his actions, and his “offer” to make restitution to the
victims was simply an agreement that his $500,000
bond would be forfeited to the victims rather than the
court. Because the government did not move for the
additional reduction, the district court properly rejected
Nurek’s argument for a third acceptance-of-responsibility
point. U.S.S.G. § 3E1.1 cmt. n.6 (“[A]n adjustment
under subsection (b) may only be granted upon a
formal motion by the Government at the time of sen-
tencing.”).
Nurek argues on appeal that the government has only
limited discretion to withhold a motion for a third-level
reduction under § 3E1.1(b). Not true. We have recently
reiterated that although subsection (a) of the acceptance-of-
responsibility guideline “confers an entitlement on the
defendant[] if he satisfies the criteria in the subsection,”
No. 07-3568 13
subsection (b) “confers an entitlement on the government.”
United States v. Deberry, No. 09-1111, 2009 WL 2432481,
at *1 (7th Cir. Aug. 11, 2009). Subsection (b) of § 3E1.1 is
thus “a license for prosecutorial discretion.” Id. If the
government “wants to give the defendant additional credit
for acceptance of responsibility . . . and can satisfy the
criteria in the subsection, it can file a motion and the
defendant will get the additional one-level reduction in his
offense level.” Id. The prosecutor’s discretion is therefore
quite broad, though not limitless; the government “may
not base a refusal to file a motion under section 3E1.1(b) on
an invidious ground, or . . . on a ground unrelated to a
legitimate governmental objective.” Id. at *2.
Here, the government’s reasons for refusing to file a
§ 3E1.1(b) motion were hardly invidious or unrelated to
a legitimate governmental objective. To the contrary,
the government’s arguments would have fully supported
a decision to deny the two-point reduction under sub-
section (a) of the guideline, had the district court so
ruled. Nurek did frivolously contest the obstruction-of-
justice enhancement, for the reasons we have already
noted. He pleaded guilty to just one of ten counts and
demonstrated little real insight into or remorse for
the depravity of his conduct. His “agreement” to make
restitution cost him nothing; his bond would have been
subject to forfeiture anyway based on his violations of
the terms of his pretrial release order. The government
acted well within its discretion in withholding a motion
for the additional one-point reduction for acceptance of
responsibility under § 3E1.1(b).
14 No. 07-3568
C. Use of 2006 Guidelines Manual
Nurek next argues that the district court’s use of the
2006 Guidelines Manual rather than the 2003 Guidelines
Manual violated the Ex Post Facto Clause of the United
States Constitution. Nurek’s argument is squarely fore-
closed by United States v. Demaree, 459 F.3d 791 (7th Cir.
2006). Demaree held that application of the guidelines
manual in effect at sentencing rather than the one in
force at the time of the defendant’s crime does not violate
the Ex Post Facto Clause, even if the current manual
suggests a harsher sentence for the defendant. Nurek
invites us to reconsider Demaree. We decline the invitation.
A law violates the Ex Post Facto Clause if it creates a
substantial risk of an increased penalty after a crime has
been committed. See Garner v. Jones, 529 U.S. 244, 255-56
(2000). We held in Demaree that a change in the guide-
lines does not violate the Ex Post Facto Clause because
after United States v. Booker, 543 U.S. 220 (2005), the guide-
lines are purely advisory. We held that “the ex post facto
clause should apply only to laws and regulations that
bind rather than advise.” Demaree, 459 F.3d at 795. After
we heard oral argument in this case, the D.C. Circuit
rejected our view in Demaree and held instead that “[i]t
is enough that using the 2006 Guidelines created a sub-
stantial risk that [the defendant’s] sentence was more
severe.” United States v. Turner, 548 F.3d 1094, 1100 (D.C.
Cir. 2008). The D.C. Circuit focused on the practical
application of the guidelines, noting that trial judges
usually sentence within the guidelines “in order to avoid
the increased scrutiny [on appeal] that is likely to result
No. 07-3568 15
from imposing a sentence outside the Guidelines.” Id.
at 1099.
We anticipated this argument in Demaree and rejected it,
noting that the presumption of reasonableness that
adheres to a within-guidelines sentence only applies on
appeal. Demaree, 459 F.3d at 794. At sentencing, a district
judge “is not required—or indeed permitted—to ‘presume’
that a sentence within the guidelines range is the correct
sentence . . . . [H]is freedom to impose a reasonable sen-
tence outside the range is unfettered.” Id. at 794-95 (citation
omitted). The Supreme Court reiterated this point in
both Gall and Rita. See Gall v. United States, 128 S. Ct. 586,
597 (2007) (“In [calculating the sentence, the judge] may
not presume that the Guidelines range is reasonable.”);
Rita v. United States, 127 S. Ct. 2456, 2465 (2007) (“[T]he
sentencing court does not enjoy the benefit of a legal
presumption that the Guidelines sentence should ap-
ply.”). Given the breadth of the district court’s Booker
sentencing discretion and the requirement that judges
independently evaluate the sentencing factors specified
in 18 U.S.C. § 3553(a), we think our conclusion in
Demaree remains sound.
D. Reasonableness of the Sentence
Finally, Nurek argues that his 240-month sentence is
unreasonable in light of § 3553(a)’s sentencing factors.
Specifically, he contends that the district court gave
insufficient weight to his primary argument, which was
premised on the opinion of his expert, Dr. Richard Abrams,
16 No. 07-3568
that a sex-offender treatment program would “cure him
and prevent recidivism” and therefore a lengthy period
of incarceration was unnecessary. The record refutes
this claim; the district judge evaluated Dr. Abrams’s
testimony and indeed, questioned the expert himself
for several minutes. In arriving at the 240-month sen-
tence, the judge was skeptical of the possibility that
Nurek could be successfully treated, although he agreed
to recommend that he receive sex-offender treatment
while in prison. The judge ultimately concluded that
incapacitation was necessary based on the seriousness
of Nurek’s offense conduct, his history, and the high risk
of recidivism: “[T]he one thing I am sure of in this is that
the best way to protect the public is for Mr. Nurek not to
be free for as long as possible.”
Nurek also faults the district court for not giving suffi-
cient weight to his age (59 years old) and his physical
and mental-health problems (including asthma,
high blood pressure, and a history of depression and
alcoholism, among other ailments). Although the judge
did not discuss each of these factors individually, he did,
in the context of discussing Dr. Abrams’s opinion, refer
to Nurek’s psychological background and the improb-
ability of successful rehabilitation. Nurek’s physical
ailments and age are not significant mitigating factors
in the context of this case, and as such, the district court
need not have separately addressed them. United States.
v. Martinez, 520 F.3d 749, 752-53 (7th Cir. 2008) (insub-
stantial sentencing arguments may be rejected without
discussion); United States v. Shannon, 518 F.3d 494, 496 (7th
Cir. 2008) (“The court need not address every § 3553(a)
No. 07-3568 17
factor in checklist fashion, explicitly articulating its con-
clusions regarding each one.”).
The district court gave specific and appropriate con-
sideration to the relevant § 3553(a) factors and Nurek’s
primary sentencing argument, which focused on Dr.
Abrams’s opinion about his amenability to treatment. The
240-month sentence—the default guidelines range under
§ 5G1.1(a)—is presumed reasonable on appeal and re-
viewed deferentially. Rita, 127 S. Ct. at 2465; United States
v. Haskins, 511 F.3d 688, 695 (7th Cir. 2007); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Nurek has not
rebutted the presumption or convinced us that the
district court abused its discretion. Under the extremely
aggravated circumstances of this case, the 240-month
sentence was a reasonable one.
A FFIRMED
8-21-09