United States v. Darrick Boroczk , 705 F.3d 616 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1022
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ARRICK C. B OROCZK ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 647—Ronald A. Guzman, Judge.
A RGUED O CTOBER 23, 2012—D ECIDED JANUARY 18, 2013
Before F LAUM and S YKES, Circuit Judges, and R ANDA,
District Judge.Œ
R ANDA, District Judge. Darrick C. Boroczk (“Boroczk”),
a self-described “kingpin” of child pornography on the
internet, created hundreds of sexually explicit images
and videos involving two of his own children. Boroczk
Œ
The Honorable Rudolph T. Randa, United States Court for
the Eastern District of Wisconsin, sitting by designation.
2 No. 12-1022
pled guilty to four counts of manufacturing and one
count of possessing child pornography. After a daylong
sentencing hearing, the district court imposed four 15-
year sentences on the manufacturing counts and a 10-year
sentence on the possession count, to be served consecu-
tively, for a total of 70 years’ imprisonment. On ap-
peal, Boroczk argues that the district court committed
procedural error and imposed a substantively unrea-
sonable sentence. Finding no merit in Boroczk’s argu-
ments, we affirm the 70-year sentence.
I. Background
The facts in this case are disturbing and graphic, but
they must be described in some detail given the nature
of Boroczk’s challenge to the sentence. Boroczk has
five children, two of whom were involved in the above-
described incidents. Between 2006 and 2008, Boroczk
created approximately 300 still images and multiple
videos of his three- to five-year-old daughter and/or his
two-year-old son engaging in sexually explicit conduct.
In addition to these images and videos, authorities
found approximately 8,452 still images and 186 videos
of child pornography on the hard drive of Boroczk’s
computer. In count five of the indictment, Boroczk was
charged with possessing the foregoing items of child
pornography. 18 U.S.C. § 2252A(a)(5)(B). In counts one
through four, Boroczk was charged with manufacturing
child pornography. 18 U.S.C. § 2251(a).
Boroczk was charged on July 29, 2009 and arrested the
following day. Speaking with law enforcement, Boroczk
No. 12-1022 3
initially told agents that he had never taken any “inappro-
priate” pictures of his children. Presentence Report
(“PSR”), Ex. B at 4. However, after agents told Boroczk
that his likeness had been captured in pictures with his
children, Boroczk admitted to taking pornographic
pictures of his kids, although he claimed that he “defi-
nitely” took fewer than 100 pictures. Id.
When asked what drove him to take pornographic
pictures of his own children, Boroczk replied, “Curiosity.”
Id. at 6. Boroczk further stated that while he was
chatting online, a person with whom he was chatting
would occasionally ask if he had ever taken pornographic
pictures of his own children. In response, Boroczk would
on occasion have his children show their chest or buttocks
to a webcam so the person he was chatting with could
see them in real time. Id.
Agents then asked Boroczk if he ever inappropriately
touched his children. Boroczk responded, “I’m sure I did,
with my hand, topically.” Id. However, Boroczk denied
that he ever touched his son, or that he made his
children touch or perform sexual acts on each other.
Id. Further, Boroczk claimed that he never touched his
children with his penis, and that his penis was never
near his children. Id.
Agents then confronted Boroczk with twenty images
of his children recovered from a computer in Pennsyl-
vania. Id. Boroczk admitted that he took all of the
pictures, and that the images were of his daughter and/or
his son. These images included: (1) Boroczk’s daughter
lying on her back with her legs spread while Boroczk’s
4 No. 12-1022
erect penis was pressed against her vagina; (2) Boroczk’s
daughter lying on an open diaper with her legs spread
and Boroczk’s erect penis in her right hand; and
(3) Boroczk’s son lying on his back with his legs spread
and Boroczk’s daughter touching his exposed penis and
testicles. (Boroczk stated that he told his daughter to
touch his son’s penis, and that his daughter “did not
have any problem with it”). Id. at 6-10.
Agents then asked Boroczk to describe how he touched
his children. Boroczk said that he tried to penetrate
his daughter’s vagina and anus with his penis but “it
wouldn’t go in” and she said it hurt. Instead, Boroczk
rubbed the tip of his penis against her vagina and anus,
and inserted the tip of his penis into her vagina. Further,
Boroczk admitted that he had her masturbate him by
having her touch his penis with her hand. Boroczk
stated that on a few occasions, he ejaculated on her stom-
ach. Id. at 10. When he was touching her, Boroczk told
his daughter that “daddy loves her and won’t do any-
thing to hurt her.” Id. at 11.
After initially denying that he touched his son, Boroczk
later admitted that he masturbated him because he
was “curious to see if a child that young could get an
erection.” Id. at 10. In addition, Boroczk admitted that he
instructed his daughter to touch his son’s penis and
testicles. Boroczk also asked his son to touch his
daughter’s vagina, but according to Boroczk, his son
“said no. He didn’t care for it. He just wanted his
diaper on.” Id.
When asked what sexually attracted him to his own
children, Boroczk responded, “Their innocence and
No. 12-1022 5
purity.” Id. at 11. Boroczk further said that “it was fun”
taking pornographic pictures with his children, that
his children seemed to be having a good time, and that
he did not think he was hurting them. Boroczk said that
he chatted online almost every day with other indi-
viduals who were interested in child pornography when
he had internet access at his residence. He also sent
pornographic images and videos of his children to
those individuals. Id. at 12.
II. Sentencing
In his sentencing memorandum, Boroczk requested a
fifteen-year mandatory minimum sentence. In support,
Boroczk filed a report from Dr. Mickey Morgan, a
clinical psychologist, who stated that Boroczk was under-
going weekly telephone counseling sessions. According
to Dr. Morgan, Boroczk initially struggled with “demon-
strating levels of remorse consistent with the severity of
his crime.” Morgan Report at 2. However, Boroczk’s
level of remorse “dramatically improved along with his
empathy for both direct and indirect victims.” Dr. Morgan
stated that Boroczk’s clinical prognosis for “successful
long-term rehabilitation” was excellent, assuming
Boroczk’s “continued sincere efforts in treatment.” Id. at 3.
Boroczk also filed a report from Dr. Michael Fogel, a
psychologist. Dr. Fogel recounted Boroczk’s path from
viewing adult pornography on the internet to viewing
child pornography and eventually creating child pornog-
raphy. Dr. Fogel wrote that Boroczk had “few static,
or unchangeable, risk factors that have been shown to
6 No. 12-1022
be associated with sexual recidivism,” such as “prior
criminal history, prior sexual offending, resistance to
rules and supervision, employment instability, having
never been married, and stranger or unrelated victims.”
Fogel Report at 20-21. Dr. Fogel conceded that Boroczk
presented “several risk factors,” including “sexual preoc-
cupation, deviant sexual interest, offense-supportive
attitudes, and intimacy deficits.” Id. at 21. However,
Dr. Fogel discounted these factors based on research
which shows that incest sexual offenders recidivate at
a lower rate than extra-familial sexual offenders. In ad-
dition, Boroczk would be much older and presumably
be on supervised release for an extended period of
time after his term of confinement. Id. Accordingly,
Dr. Fogel concluded that Boroczk’s “risk to commit a
future hands-on sexual offense is low.” Id.
In its own submissions, the government requested a
guidelines sentence capped at the statutory maximum
of 130 years. The government generally argued that all
of the relevant sentencing factors favored the maximum
possible sentence. 18 U.S.C. § 3553(a). Regarding the
need to “protect the public from further crimes of the
defendant,” § 3553(a)(1)(C), the government submitted a
letter from psychologist Dr. Tracy L. Rogers, who was
asked to “comment on the methods and process
employed by Dr. Fogel in arriving at his conclusions, and
to point out any areas of disagreement.” Rogers Letter
at 1. Dr. Rogers criticized Dr. Fogel’s failure to conduct
a phallometric assessment, specifically the Penile
Plethysmograph (“PPG”). “The single strongest predictor
of sexual recidivism is sexual interest in children as
No. 12-1022 7
measured by phallometric assessment. Objective physio-
logical assessment is [the] best method of measuring
sexual interest/arousal, both healthy and deviant, and
the [PPG] is the gold standard of physiological assess-
ment.” Id. at 2.1 Dr. Rogers also criticized Dr. Fogel’s
failure to offer an opinion as to whether Boroczk is a
pedophile because “sexual interest in children, a marker
for DSM-IV pedophilia, correlate[s] strongly with sexual
recidivism.” Id. Ultimately, Dr. Rogers “disagree[d] with
[Dr. Fogel’s] opinion that Mr. Boroczk is low risk
to commit additional sexual offenses” because Dr. Fogel
1
At sentencing, Dr. Rogers described the PPG as follows:
It’s an examination [that] measures deviant sexual interests
and non-deviant sexual interests as well. The client sees—
there’s 22 segments to the test. The client is [alone] in a
room. . . . They have a respiratory belt on, electrodes
that measure changes in skin conductance, and they have
a gauge that goes around their penis that measures change
in penile circumference. They are shown videos. Each
segment is—consists of—when it begins, they show a
photo of the age and gender of the person that the story is
about. The photo then leaves the screen and there’s 90
seconds of audio that describes a very sexually graphic
scene. . . . [T]hen after the audio, then more pictures of
the person that the story was about return.
During the test the client is asked to press a button
after they hear a tone. The tone indicates—when they press
the button once, it means they think the story is persuasive;
twice if they think it’s coercive or mean or violent.
Sent. Tr. at 110-11.
8 No. 12-1022
did not have “sufficient evidence to offer an opinion
on risk . . . .” Id.
At sentencing, the district court heard testimony from
Dr. Fogel and Dr. Rogers in rebuttal; Dr. Morgan did not
testify. On cross-examination, the government questioned
Dr. Fogel about his prior testimony in a commitment
proceeding in state court. Sent. Tr. at 61. In that case,
Dr. Fogel advanced the opinion that an individual posed
a high risk of committing future sex offenses against
children because he was a pedophile. This was in spite
of an actuarial assessment which indicated that this
person posed a low risk of recidivism.
In announcing its sentence, the district court began
by acknowledging that the guidelines range called for a
life sentence, which defaulted to the maximum sentence
on each of the five counts in the indictment. Then, the
court considered the various factors under § 3553(a),
including the nature and circumstances of the offense
and the need for the sentence to reflect the seriousness
of that offense. The court explained:
The offense in this case at its essential core consists
of taking advantage of innocent and defenseless
children repeatedly over a prolonged period of time
for the sole purpose of personal sexual gratifica-
tion. That’s it. And this is done by the very person
charged, not only under law but by every parameter
of our society, with protecting them from such
abuses. It’s conduct that no civilized society can
possibly allow no matter what the circumstances.
Sent. Tr. at 159.
No. 12-1022 9
With regard to specific deterrence and the need to
protect the public from future crimes, the district court
considered the testimony of Dr. Fogel and Dr. Rogers,
ultimately rejecting Dr. Fogel’s opinion as unreliable.
Not only are some of Dr. Rogers’ criticisms valid, but
Dr. Fogel’s own testimony, specifically that testi-
mony in which he indicated that he felt the deter-
mination as to whether the defendant was a
pedophile would be irrelevant, was frankly confusing,
especially in view, as brought out on cross-examina-
tion, of the fact that he had previously testified
that because a respondent suffered from pedophilia,
he was more likely to commit acts of sexual violence
in the future. I find those two statements irreconcilable.
Id. at 160-61.
The court continued:
I find the defendant’s own statements at the time of
his arrest to be most revealing. It appears to be clear
from the way he described his conduct about what
he did with his children that he actually believed
he could subject his children to such conduct with-
out harming them. His disclaimers that he would
never hurt them or did not intend to hurt them or
that he stopped if they informed him they were
being hurt or did not want him to continue reflect
a total lack of comprehension of how any such
conduct was inherently and permanently harmful to
his children. And, therein, it appears to me, lies the
real risk for the future.
10 No. 12-1022
Lacking any substantial comprehension of the
violent and destructive nature of his conduct towards
his own children, it seems to me, the defendant
most likely lacks any real motivation to restrain him-
self in the future, other, of course, than the motiva-
tion that comes from the fear of being caught. But in
that regard, there is no amount of supervision, no
number of protective safeguards that can possibly
protect other children from this defendant in the
future if he himself is not motivated.
His conduct in this case, although it was his first
offense, was repeated many, many times over a
period of years, both as to his children and with
respect to his prolific Internet activities, and leaves
us with no doubt that he has an extreme sexual inter-
est, both in child pornography and in actual physical
contact with very young children. And this, it seems
to me, makes protection of the public paramount
in this case.
Id. at 161-62.
Accordingly, the district court sentenced Boroczk to
“180 months on each of Counts One through Four and
120 months on Count Five, with all counts to be served
consecutively.” Id. at 162. Boroczk’s projected release
date is August 14, 2070, at which time he will be 93 years
of age.2
2
http://www.bop.gov/iloc2/LocateInmate.jsp (use “Search by
Name” function). This projection assumes the accumulation
(continued...)
No. 12-1022 11
III. Analysis
A. Sentencing Procedures
The district court is required to follow a two-part pro-
cedure at sentencing. First, it must calculate the defen-
dant’s sentencing range under the advisory guidelines.
United States v. Dale, 498 F.3d 604, 611 (7th Cir. 2007).
The district court correctly explained that Boroczk’s
guidelines range was life in prison, which means that
the range defaulted to the maximum sentence on each
count—30 years on counts one through four and
10 years on count five, for a total of 130 years. U.S.S.G.
§ 5G1.1(a) (“Where the statutorily authorized maximum
sentence is less than the minimum of the applicable
guideline range, the statutorily authorized maximum
sentence shall be the guideline sentence”); United States
v. Veysey, 334 F.3d 600, 602 (7th Cir. 2003) (“The
federal sentencing guidelines direct the judge, when
there are multiple counts of conviction, to impose maxi-
mum and consecutive sentences to the extent neces-
sary to make the total punishment equal in severity to
what the guidelines would require were it not for the
statutory maxima”) (citing U.S.S.G. § 5G1.2(d)); United
States v. Craig, No. 12-1262, 2012 WL 6572509, at *1 (7th Cir.
Dec. 18, 2012) (“the guidelines tell the judge to sen-
tence consecutively when necessary to bring the total
2
(...continued)
of good time credits. 18 U.S.C. § 3624(b); United States v. Craig,
No. 12-1262, 2012 WL 6572509, at *1 (7th Cir. Dec. 18, 2012)
(Posner, J., concurring).
12 No. 12-1022
sentence into the guidelines range, even though the
sentence would exceed the statutory maximum sen-
tence for any count of which the defendant was con-
victed . . . .”).
Second, the district court must “hear the arguments of
the parties and conclude by making an individualized
assessment of the appropriate sentence based on the
§ 3553(a) factors.” United States v. Booker, 612 F.3d 596, 601
(7th Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 49-
50 (2007)). To comply with this requirement, the district
court must give the parties “an opportunity to draw the
judge’s attention to any factor listed in section 3553(a)
that might warrant a sentence different from the guide-
lines sentence.” United States v. Holt, 486 F.3d 997, 1004
(7th Cir. 2007). Ultimately, the court “must adequately
explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair
sentencing.” Gall, 552 U.S. at 50.
Boroczk argues that the district court erred because
its sentence was based on the conclusion that he was
certain to recidivate for the rest of his life. This is a
rather extreme mischaracterization of the rationale for
the district court’s sentence. Neither the district court
nor the various doctors who testified or provided input
at sentencing were blessed with a crystal ball to
predict Boroczk’s future behavior. In the absence of
such certainty, the district court simply weighed the
evidence before it and concluded that the risk of future
crimes was a factor in favor of a lengthy sentence.
As a more specific critique, Boroczk argues that the
district court either ignored or did not adequately
No. 12-1022 13
confront certain pieces of evidence in support of his
argument that he was not likely to recidivate. For
example, Boroczk presented evidence that incest
offenders are less likely to recidivate than extra-familial
offenders, that the risk of re-offending decreases with
advancing age, and that despite an initial lack of remorse,
Boroczk eventually expressed remorse for his crimes.
Even though this evidence was not specifically men-
tioned, the district court rejected it by implication when
it focused on the fact that Boroczk is a pedophile who
expressed an alarming lack of remorse for his crimes
after being caught. “District judges need not belabor the
obvious. The judge need not be explicit where ‘anyone
acquainted with the facts would have known without
being told why the judge had not accepted the argu-
ment.’ ” United States v. Gary, 613 F.3d 706, 709 (7th Cir.
2010) (citing United States v. Cunningham, 429 F.3d 673, 679
(7th Cir. 2005)).
B. Substantive Reasonableness
A sentence is reasonable if the district court “gives
meaningful consideration to the factors enumerated in
[18 U.S.C.] § 3553(a), including the advisory sentencing
guidelines, and arrives at a sentence that is objectively
reasonable in light of the statutory factors and the indi-
vidual circumstances of the case.” United States v. Shannon,
518 F.3d 494, 496 (7th Cir. 2008). This court reviews
the substantive reasonableness of a sentence under a
deferential, abuse of discretion standard with the pre-
sumption that a sentence within or below the guidelines
14 No. 12-1022
range is reasonable. United States v. Anderson, 580 F.3d
639, 651 (7th Cir. 2009); United States v. Wallace, 531 F.3d
504, 507 (7th Cir. 2008) (“A sentence within the [guide-
lines] range is presumptively reasonable, and it follows
that a sentence below the range also is presumptively
not too high”) (citing Rita v. United States, 551 U.S.
338 (2007)).
Boroczk argues that the presumption of reasonableness
does not apply when the guidelines range exceeds the
statutory maximum and the court stacks consecutive
sentences. This is incorrect. For example, in United States
v. Noel, 581 F.3d 490 (7th Cir. 2009), the defendant was
charged with three counts of producing and one count
of possessing child pornography. The defendant’s guide-
lines range was life in prison, which defaulted to the
combined statutory maximum of 100 years’ imprison-
ment, and the district court sentenced Noel to 80 years’
imprisonment—25 years on the first three counts and
five years on the last count, to be served consecutively.
Id. at 495 n.4. In reviewing Noel’s sentence, this court
applied the presumption of reasonableness because the
sentence was “actually twenty years below the guide-
lines sentence of one hundred years’ imprisonment.” Id.
at 500 (emphasis in original). Similarly, Boroczk’s 70-year
sentence was 60 years below the guidelines range of
130 years’ imprisonment. See also United States v. Russell,
662 F.3d 831, 853 (7th Cir. 2011) (applying presumption
to 38-year sentence where the guidelines range was life,
which reverted to the statutory maximum of 120 years);
United States v. Klug, 670 F.3d 797, 800 (7th Cir. 2012);
United States v. Tanner, 628 F.3d 890, 908 (7th Cir. 2010)
(a guidelines range of life imprisonment “effectively
No. 12-1022 15
render[s] any prison sentence presumptively reasonable
on appeal by the defendant”).
Boroczk argues that the foregoing cases were wrongly
decided because they did not consider the statutory
presumption against consecutive sentences. 18 U.S.C.
§ 3584(a) (“Multiple terms of imprisonment imposed at
the same time run concurrently unless the court orders or
the statute mandates that the terms are to run consecu-
tively”). This so-called presumption has nothing to do
with the calculation of a sentencing guidelines range.
With respect to the guidelines, the presumption of reason-
ableness “reflects the fact that, by the time an appeals
court is considering a within-Guidelines sentence on
review, both the sentencing judge and the Sentencing
Commission will have reached the same conclusion as to
the proper sentence in the particular case. That double
determination significantly increases the likelihood that
the sentence is a reasonable one.” Rita, 551 U.S. at 347
(emphasis in original). Boroczk does not dispute that
his guideline range was calculated correctly.
With the presumption firmly in place, Boroczk must
show that his sentence is “substantively unreasonable in
light of the sentencing factors set forth in section 3553(a).”
Russell, 662 F.3d at 853 (citing United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005)). The district court’s
sentence is not unreasonable simply because it em-
phasized the need for just punishment. Sentencing
judges “have discretion over how much weight to give
a particular factor. Although the weighting must fall
‘within the bounds of reason,’ those bounds ‘are wide.’ ”
16 No. 12-1022
United States v. Reibel, 688 F.3d 868, 872 (7th Cir. 2012)
(internal citations and quotations omitted). Much like the
defendant in Noel, Boroczk’s actions were “unspeakable.”
581 F.3d at 501. In Noel, the defendant took nude photo-
graphs of his stepbrother’s young son and possessed
other images of child pornography. As horrible as that is
to imagine, Boroczk’s actions were even more monstrous
because he created images and videos of himself
molesting his own children, sharing these images with
his online “friends.” In that light, and in specific compari-
son to the 80-year sentence in Noel, Boroczk’s 70-year,
below-guidelines sentence is reasonable.
IV. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
1-18-13