United States v. Christopher Bour ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-2211 & 15-1090
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER BOUR,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:13-cr-00036 — Rudy Lozano, Judge.
____________________
ARGUED SEPTEMBER 24, 2015 — DECIDED OCTOBER 27, 2015
____________________
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
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.
2 Nos. 14-2211 & 15-1090
Bour pleaded guilty on five counts, while Natisha was sepa-
rately 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 pornog-
raphy under 18 U.S.C. § 2251(a), and one count of possessing
child pornography under 18 U.S.C. § 2252(a)(4). At his sen-
tencing hearing, he objected to the sentencing memoran-
dum’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 rec-
tum. Bour argued against the videos as prejudicial, irrele-
vant, 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
Nos. 14-2211 & 15-1090 3
count, including the conditions of release that Bour chal-
lenges here.
At sentencing, the district judge accepted the govern-
ment’s assertion that restitution damages could not be ascer-
tained until post-sentencing, while noting that he was statu-
torily required to decide restitution within 90 days of sen-
tencing. Bour was sentenced on May 15, 2014. In an order
dated 89 days post-sentencing, the district judge found “res-
titution to be applicable” and took the amount under ad-
visement. 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 super-
vised-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 de-
picted in his videos is not unlawful, it should have been ex-
cluded.
When a defendant is sentenced, Congress provides that
“[n]o limitation shall be placed on the information concern-
ing the background, character, and conduct of a person con-
victed of an offense which a court of the United States may
4 Nos. 14-2211 & 15-1090
receive and consider for the purpose of imposing an appro-
priate 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 accu-
rate. See Pepper v. United States, 562 U.S. 476, 489 n.8 (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 (1972)) (citations omitted).
Bour urges that the conduct in his videos is beyond con-
sideration because the Supreme Court provided constitu-
tional protection to “certain intimate conduct” in Lawrence v.
Texas, 539 U.S. 558, 562 (2011). 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 enumer-
ated characteristics. The video summaries discussed Bour’s
actions, not his race, creed, or any other constitutionally pro-
tected characteristic. Four of Bour’s five counts involve pro-
duction 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 impos-
ing consecutive terms of imprisonment, rather than concur-
rent terms. We review Bour’s criminal sentence in two steps:
first for procedural error, then for substantive reasonable-
ness. United States v. Warner, 792 F.3d 847, 855 (7th Cir. 2015)
(citing Gall v. United States, 552 U.S. 38, 51 (2007)).
Nos. 14-2211 & 15-1090 5
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 consecu-
tive 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 discre-
tion 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 Guide-
lines prefer concurrent sentences, “undoubtedly a sentenc-
ing court enjoys broad discretion in deciding” whether to
run concurrent or consecutive terms. United States v. Mor-
gano, 39 F.3d 1358, 1366 (7th Cir. 1994) (citations omitted).
If a district court goes above the Guidelines, it must ade-
quately 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
6 Nos. 14-2211 & 15-1090
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 sen-
tence “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) (cita-
tions 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 con-
sider all factors,” “look[ed] at trying to give [Bour] a sen-
tence no more than is absolutely necessary,” and “consid-
ered all of the 3553(a) factors that [Bour’s] attorney brought
out in his memorandum.” Id. at 28, 32, 37. While he consid-
ered 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 ap-
plies 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 mitiga-
tion, 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 mes-
sage 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,
Nos. 14-2211 & 15-1090 7
if they’re not blinded by their desires, [and communicate
that] society is not going to allow this. This Court is not go-
ing 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 the sentencing court
painstakingly reviewed, it was legitimate for the court to
send this strong deterrent message against baby pornogra-
phy.
This would be enough to sustain Bour’s sentence, but for
the district court’s declaration that it was “imposing a sen-
tence at the upper end of the [G]uidelines because of the
number of images, the sexual contacts with the child result-
ing in child pornography, the lack of remorse, the age of the
children,” what it found to be a fair sentence, deterrence,
and more. Sentencing Tr. 42. In short, there is a direct con-
tradiction between the court’s declaration that it was impos-
ing a within-Guidelines sentence and its action in imposing
an out-of-Guidelines sentence.
Nevertheless, even though the consecutive terms were
procedural error, this is legally harmless. We tread carefully
in finding harmless error because a man’s liberty is at stake
here. To be harmless, the district court’s sentencing error
must not affect Bour’s substantive right to liberty. United
States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009). The federal
system has abolished parole. As a matter of law, this court
has therefore found that sentences of “‘life’ and ‘life plus x
years’ come to the same thing.” Harris v. Warden, 425 F.3d
386, 387 (7th Cir. 2005); see also United States v. Cephus, 684
F.3d 703, 705 (7th Cir. 2012). Whether the terms are concur-
rent or consecutive, Bour’s life sentence alone is the same as
life plus 85 years. Further, based on his recitation of facts
8 Nos. 14-2211 & 15-1090
and concerns, there is no doubt that the sentencing court in
this case specifically intended that Bour would remain in
federal prison for the remainder of his life. Even though the
district court should have explained why he imposed con-
secutive sentences on top of the life sentence, the result is the
same either way.
We thus do not remand for procedural error.
2. Substantive reasonableness
Bour also argues that his sentence of life plus 85 years
was substantively unreasonable. We review a sentence’s
substantive reasonableness for abuse of discretion. Annoreno,
713 F.3d at 356–57 (citing Marin-Castano, 688 F.3d at 902).
A sentencing judge must meaningfully consider the 18
U.S.C. § 3553(a) factors, “including the advisory sentencing
guidelines,” and reach an outcome that is “objectively rea-
sonable in light of the statutory factors and the individual
circumstances.” United States v. Brown, 732 F.3d 781, 788 (7th
Cir. 2013) (citing United States v. Boroczk, 705 F.3d 616, 623
(7th Cir. 2013)). A sentence is not presumed unreasonable
simply because it is above the Guidelines range. United States
v. Pabey, 664 F.3d 1084, 1098 (7th Cir. 2011) (citing United
States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008)). While “a
more significant justification” is needed for a major depar-
ture from the Guidelines, that justification need not be “ex-
traordinary.” Id. (citing United States v. Schlueter, 634 F.3d
965, 967 (7th Cir. 2011); Jackson, 547 F.3d at 792). And this
case is extraordinary: it ranks among the worst that the dis-
trict judge has seen, a case that combines almost every sexu-
al crime he has encountered into a series of assaults on one
baby, and we must also recognize that Bour further photo-
Nos. 14-2211 & 15-1090 9
graphed her four-to-five-year-old sister to produce child
pornography. See Sentencing Tr. at 34.
Given the statutory factors and Bour’s circumstances, his
sentence is not objectively unreasonable. At sentencing, the
district judge raised many individualized issues, including
his concern that he “really stumble[d]” in his effort to be-
lieve Bour could avoid repeating his crimes and be responsi-
ble with a shorter sentence; that the sentence “should be
equal to what [the judge gave] other people with the same
type of crimes”; that Bour lacked “remorse, [and had] a grin
on [his] face, of an enjoyment of doing this”; and that the
victim was “an innocent child that could not fight back.” Id.at 34–37. On this record, the sentencing court did not abuse
its discretion when imposing life plus 85 years. The sentence
accounts for the horror of Bour’s crimes.
When the district judge was sentencing Bour, he asked
Bour, “Can I tell the young mothers of this world that you’re
not going to be out there possibly addressing their kids?”
Sentencing Tr. at 34. After affirming that he was imposing
the shortest possible sentence, the judge concluded, “I’m not
sure I can do that, Mr. Bour, bring you back to society, be-
cause of the risks that are so horrific.” See id. at 35. In short,
the judge believed it was necessary to ensure that Bour
would never leave prison. Because this is a justified reason
for consecutive sentences, there was no abuse of discretion
in substantive terms.
C. Conditions of Supervised Release
Because Bour failed to object to the conditions of release
in district court, even though he was represented at sentenc-
ing, this court reviews for plain error. See United States v.
10 Nos. 14-2211 & 15-1090
Musso, 643 F.3d 566, 571 (7th Cir. 2011) (citing United States v.
Ross, 475 F.3d 871, 873 (7th Cir. 2007)). Plain error either af-
fects a defendant’s substantive rights or seriously affects a
judicial proceeding’s fairness, integrity, or public reputation.
United States v. Franklin, 197 F.3d 266, 271 (7th Cir. 1999) (cit-
ing United States v. Vest, 116 F.3d 1179, 1185 (7th Cir. 1997)).
Supervised-release conditions must reasonably relate to
four factors: “[1] the defendant’s offense, history, and char-
acteristics; [2] the need for deterrence; [3] the need to protect
the public from the defendant; and [4] the need to provide
the defendant with treatment.” Musso, 643 F.3d at 571 (citing
18 U.S.C. § 3583(d)). Any condition of release must reasona-
bly relate to the first factor. 18 U.S.C. § 3583(d)(1). It also
cannot deprive more liberty than is reasonably necessary to
achieve the latter three factors. 18 U.S.C. § 3583(d)(2). In this
case, Bour challenges six conditions of supervised release
that were in fact inapplicable to him, overbroad, or vague.
Bour fails to show that his substantive rights, the criminal
proceeding’s fairness or integrity, or the proceeding’s public
reputation will suffer. See United States v. Silvious, 512 F.3d
364, 371 (7th Cir. 2008). He is serving a life sentence; he will
not be subject to his conditions of release. Further, when a
defendant is released and must comply with supervised-
release conditions, district courts can readily modify these
conditions at the defendant’s request. Id. (citing 18 U.S.C.
§ 3583(e)(2); Fed. R. Crim. P. 32.1(c)). The integrity and pub-
lic reputation of criminal proceedings are supported by
“[e]ncouraging this simple expedient,” rather than by “per-
petuating expensive and time-consuming appeals and resen-
tencings.” Id. (citing United States v. Tejeda, 476 F.3d 471, 475
(7th Cir. 2007)).
Nos. 14-2211 & 15-1090 11
We recognize a tension between this court’s decision in
United States v. Silvious, which encourages defendants to
begin by asking district courts to modify conditions of re-
lease, and our recent decisions to remand conditions of re-
lease for plain error. See, e.g., United States v. Thompson, 777
F.3d 368 (7th Cir. 2015); United States v. Kappes, 782 F.3d 828(7th Cir. 2015). We find the latter decisions distinguishable
under the plain-error standard, however, because Bour is
serving a life term that will not allow him to reach the su-
pervised-release stage of his sentence. This is harmless error
again because Bour’s substantive rights are unaffected by the
district court’s misstep.
We thus decline to remand Bour’s conditions of super-
vised release for resentencing.
D. Restitution Order
Restitution awards are typically reviewed de novo, but
we examine for plain error because Bour failed to object be-
low. United States v. Walker, 746 F.3d 300, 308 (7th Cir. 2014),
cert. denied, 135 S. Ct. 737 (2014) (citing United States v. Berko-
witz, 732 F.3d 850, 852 (7th Cir. 2013); United States v. Robers,
698 F.3d 937, 941 (7th Cir. 2012)). We recognize that one of
Bour’s attorneys withdrew before restitution was ordered,
leaving him pro se when the order issued, and we would
make the same findings even under de novo review.
If a victim’s losses are “not ascertainable” 10 days before
sentencing, the prosecutor must inform the court, and the
court must set a final-determination date no more than 90
days after sentencing. 18 U.S.C. § 3664(d)(5). In this case,
Natisha’s daughters had no guardian when Bour was sen-
tenced. As a result, the government could not legally decide
12 Nos. 14-2211 & 15-1090
how much restitution to request until after these minors re-
ceived a court-appointed guardian. It was thus necessary for
the district court to continue the restitution question.
This is the situation where “a deadline seeks speed by
creating a time-related directive,” yet if the district judge
timely makes clear that he will order restitution, he retains
the power to set the restitution amount after the 90-day
deadline. See Dolan v. United States, 560 U.S. 605, 608, 611
(2010). The statute is primarily designed to give victims
timely relief; it is not written to give defendants an absolute
deadline, after which they are freed from providing restitu-
tion to the individuals they have harmed. See id. at 613–14.
Here, the district judge announced 89 days post-sentencing
that he would order restitution, while deferring his decision
on the amount. He had authority to impose the restitution
amount later. We find no error in the restitution order.
III. Conclusion
The district court’s decisions regarding Christopher
Bour’s masturbation videos, consecutive sentences, and res-
titution order are AFFIRMED.