United States v. Gary Boyle ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1093
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GARY L. BOYLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:19-cr-20019 — James E. Shadid, Judge.
____________________
ARGUED OCTOBER 28, 2021 — DECIDED MARCH 14, 2022
____________________
Before RIPPLE, HAMILTON, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Gary Boyle challenges a 50-year
federal sentence he received for producing and possessing
child pornography. The district court ran the time consecutive
to a 40-year state sentence Boyle had already received for sim-
ilar conduct. The district court was well aware of the length
and gravity of the 90-year cumulative sentences. What mat-
tered most, however, was the atrocity of Boyle’s offense
2 No. 21-1093
conduct—his sexual assault of an eight-year-old girl on a
video livestreamed to other child sexual predators. We affirm.
I
Gary Boyle’s legal trouble began in February 2019, when
Kik Messenger—a smartphone application that allows users
to send texts, pictures, and videos—flagged images and vid-
eos of suspected child pornography for law enforcement offi-
cials. Agents investigated and confirmed that the images and
videos depicted a young girl, about eight years old, undress-
ing and engaging in explicit sexual acts with an adult male.
Law enforcement traced the files to Gary Boyle’s home in
Decatur, Illinois. After agreeing to speak with the agents,
Boyle admitted not only that he was the man in the images,
but also that he used the flagged Kik account to receive and
share child pornography. He told agents that on February 4,
2019 he sexually abused the child and “live-stream[ed] his
sexual abuse . . . to the other members in his Kik group.” A
subsequent search of Boyle’s cell phone revealed 100 images
and videos of children other than the victim being sexually
abused and exploited. The eight-year-old told a family mem-
ber that the sexual abuse started when she was five.
State and federal charges quickly followed. In July 2020
Boyle pled guilty in state court to a single count of predatory
criminal sexual assault of a child. The count charged that the
sexual assault occurred between October 10, 2010 and Febru-
ary 3, 2019. The state court sentenced Boyle to 40 years’ im-
prisonment.
Boyle’s federal case was different. It focused not on the
sexual abuse itself but on his production and distribution of
visual depictions of that abuse. Seven of the eight federal
No. 21-1093 3
charges stemmed from the videos and images Boyle created
on February 4, 2019—the day he livestreamed the sexual as-
sault to other members of the Kik messenger group. The
eighth count charged possession of child pornography. The
district court accepted Boyle’s guilty plea to all eight charges
in October 2020.
After hearing from both parties at sentencing and resolv-
ing Boyle’s two objections to the presentence investigation re-
port, or PSR, the district court adopted the PSR’s calculation
of a total offense level of 43 and a criminal history category of
IV. Those totals resulted in an advisory Guidelines range of
life imprisonment, subject to the cumulative statutory maxi-
mum of 230 years for all offenses of conviction.
The government asked for a stiff sentence. Emphasizing
the gravity of Boyle’s conduct, it urged the district court to
sentence him to 230 years—the statutory maximum 30-year
sentence on each of the seven production counts plus the
maximum 20-year sentence on the possession count. And
based on its view that the creation of each picture and video
inflicted distinct and incremental harm on Boyle’s victim—
harm wholly separate from the traumatic abuse itself—the
government asked the court to run those sentences both con-
secutively to one another and to Boyle’s 40-year state sentence.
Defense counsel acknowledged that “the Court c[ould] fash-
ion any sentence it wishe[d]” within the “thousands of
months” it had to work with, but reiterated Boyle’s position
that running any and all federal time concurrent with the 40-
year state sentence would achieve the sentencing aims of 18
U.S.C. § 3553(a).
The district court also heard at sentencing from Boyle’s
victim and her mother. The child, 10 at the time, appeared in
4 No. 21-1093
court and submitted a written statement for the prosecutor to
read aloud. She described how Boyle’s sexual abuse had filled
her with “ugly thoughts and feelings” that made her angry,
sad, and scared—and left her feeling, at times, like she
“shouldn’t be alive.” She told the district judge that, although
she felt like the abuse she suffered was her own fault, she re-
mained determined (with the help of others) not to allow
Boyle’s wrongdoing to destroy or define her.
When it came her turn, the child’s mother expressed her
own overwhelming guilt for not keeping her daughter safe.
She told the district judge that Boyle had stolen “her [daugh-
ter’s] childness, her innocence, her dreams, self-esteem, and
self-worth” and that her daughter had become fearful, dis-
trustful, isolated, and uncomfortable with physical affection.
In her view, “no amount of prison time will ever be enough”
for making the young girl “a statistic” and creating images
and videos of her abuse that would never go away.
After hearing these statements, considering all other infor-
mation presented by the parties, and applying the factors in
18 U.S.C. § 3553(a), the district court sentenced Boyle to 50
years’ imprisonment. The court imposed 30-year sentences on
each of the seven production counts, stating that each of those
sentences would run concurrent with one another because
Boyle’s conduct “occur[ed] . . . over the course of the same
day.” On top of those 30-year sentences, however, the district
court imposed a 20-year sentence on the possession count.
The court explained that the child pornography possession
charge was a “completely different count on a completely dif-
ferent day and a completely different time period,” and sub-
jected children other than Boyle’s victim “to the perverted
No. 21-1093 5
and distorted and sick nature” of individuals seeking out
child pornography on the internet.
Finally, the district court announced that Boyle’s cumula-
tive 50-year federal sentence would run consecutive to his 40-
year state sentence because “there could be no question” that
the conduct at the heart of Boyle’s state conviction—the sex-
ual assault, itself—“was a separate course of conduct” from
the production and possession offenses at issue in his federal
prosecution.
In imposing Boyle’s sentence, the district court expressed
his understandable disgust at the conduct before him. The
court recognized that Boyle did not need to be sentenced to
230 years’ imprisonment to accomplish the objectives of fed-
eral sentencing in § 3553(a). And so, too, did the court
acknowledge in mitigation that the horrors of Boyle’s own
background contributed, at some level, to the sexual abuse he
inflicted on the victim. In weighing everything, though, the
district judge underscored that Boyle not only effectively sen-
tenced the child “to a lifetime of nightmares and self-doubt”
through his abuse but also immortalized her trauma by
livestreaming it over Kik to others. And the court pledged to
protect the victim and her mother from Boyle for the rest of
their lives—hence the decision to ensure, through the 50-year
consecutive sentence, that Boyle would face combined federal
and state sentences of “of 90 years or nearly 90 years.”
Boyle timely appealed.
II
“Federal criminal sentences must be both procedurally
sound and substantively reasonable,” and Boyle attacks his
6 No. 21-1093
sentence on both fronts. United States v. Morgan, 987 F.3d 627,
631–32 (7th Cir. 2021).
We review sentencing challenges not presented to the dis-
trict court only for plain error. See United States v. Roush, 2
F.4th 616, 618 (7th Cir. 2021). If the district court properly cal-
culated the advisory Guidelines range, we review the ulti-
mate sentence deferentially under an abuse of discretion
standard. See Gall v. United States, 552 U.S. 38, 51 (2007).
A
Boyle first contends that the district court committed two
procedural errors in calculating the advisory Guidelines
range of life imprisonment. He sees what he calls double- or
even triple-counting in the district court’s determination of
his offense level and criminal history category. Boyle also in-
sists that the district court overlooked key guidance in
U.S.S.G. § 5G1.3 requiring the imposition of a concurrent (not
consecutive) federal sentence. Both errors, Boyle presses, re-
quire resentencing.
Boyle is right that a district court’s failure to correctly cal-
culate a defendant’s Guidelines range constitutes procedural
error. See Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904
(2018). How closely we review alleged errors, however, turns
on whether Boyle preserved his objections to the Guidelines
calculations in the district court. A defendant waives an ob-
jection if he “intentionally relinquishes or abandons” an argu-
ment below. United States v. Oliver, 873 F.3d 601, 607 (7th Cir.
2017) (citation omitted). In those circumstances, we will not
entertain the objection for the first time on appeal. See id. But
if there is no “strategic justification” for the defendant’s fail-
ure to make the objection in the district court, and he “merely
No. 21-1093 7
fail[ed] to raise an argument due to accident or neglect,” we
treat the argument as forfeited, not waived. Id.; see also United
States v. Anderson, 604 F.3d 997, 1001–02 (7th Cir. 2010). To
overcome forfeiture, the defendant must show that the dis-
trict court committed plain error that affected both his sub-
stantial rights and the fairness or integrity of the proceedings.
See United States v. Olano, 507 U.S. 725, 735–36 (1993); Oliver,
873 F.3d at 607.
1
We see nothing to Boyle’s objection that the district court,
in determining the advisory Guidelines range, engaged in
double counting by “conflat[ing] offense characteristics, rele-
vant conduct, and criminal history score.”
Foremost, Boyle waived the contention by failing to raise
the point in the district court. We can infer that Boyle’s trial
counsel made a “knowing and intentional decision” not to do
so because counsel raised two other (albeit, unsuccessful) ob-
jections to the PSR and ultimately agreed at sentencing that
the offense level and criminal history category calculations
were correct. United States v. Jaimes-Jaimes, 406 F.3d 845, 848
(7th Cir. 2005) (acknowledging there “may be sound strategic
reasons why a criminal defendant will elect to pursue one
sentencing argument” instead of another but warning that
“when the defendant selects as a matter of strategy, he also
waives those arguments he decided not to present”).
Nor is it difficult to “conceive of [a] strategic reason” for
counsel’s decision to forgo the argument Boyle now presses
on appeal. Oliver, 873 F.3d at 607. Not only is double counting
“generally permissible unless . . . expressly prohibit[ed],” but
the Guidelines provisions at issue here specifically permit the
8 No. 21-1093
double counting Boyle now challenges. United States v. Viz-
carra, 668 F.3d 516, 519 (7th Cir. 2012); see also
U.S.S.G. § 2G2.2(b)(5) & app. notes 1 & 5 (clarifying that a de-
fendant’s prior conviction accounted for as part of a “pattern
of activity involving the sexual abuse or exploitation of a mi-
nor” is “not excluded from consideration of whether that con-
viction receives criminal history points”); U.S.S.G. § 4B1.5(b)
& app. note 4 (explaining that “[a]n occasion of prohibited
sexual conduct may be considered . . . without regard to
whether the occasion” occurred during the commission of the
federal offense or resulted in a conviction).
2
Boyle’s second argument requires more unpacking. He
points to U.S.S.G. § 5G1.3(b)(2) which, he says, required the
district court to run the 50-year sentence concurrently to the
remainder of his 40-year state sentence—a 40-year difference
in his total term of incarceration. But Boyle forfeited this point
by not raising it in the district court, leaving us to review only
for plain error.
On the merits, we see no error. Explaining why requires
us to get into the weeds of the applicable Guidelines.
The beginning point is § 5G1.3(b) itself. If a defendant has
an undischarged term of imprisonment, and that sentence
“resulted from another offense that is relevant conduct to the
instant offense of conviction” then “the sentence for the in-
stant offense shall be imposed to run concurrently to the re-
mainder of the undischarged term of imprisonment.” U.S.S.G.
§ 5G1.3(b). In “any other case involving an undischarged term
of imprisonment,” the district court has the discretion to run
the federal sentence “concurrently, partially concurrently,”
No. 21-1093 9
or, as here, “consecutively to” the defendant’s state sentence.
Id. § 5G1.3(d).
Applying the direction from those provisions requires the
threshold determination of whether Boyle’s state offense con-
stituted “relevant conduct” to his federal offense. To answer
that question, we need to follow the cross reference in
§ 5G1.3(b) to the Guidelines’ definition of “relevant conduct”
in § 1B1.3. Section 5G1.3(b) only draws on some parts of
§ 1B1.3’s definition, however. By the terms of the cross refer-
ence, a defendant’s state conviction is “relevant conduct” only
if it encompasses: (1) acts or omissions committed by the de-
fendant that occurred during the commission of or in prepa-
ration for the federal crime; (2) acts or omissions that were
part of the “same course of conduct or common scheme or
plan” as the federal conviction; or (3) harm that resulted from
the federally-charged conduct. U.S.S.G. § 5G1.3(b) (framing
the inquiry as whether the state offense is relevant conduct
“under the provisions of subsections (a)(1), (a)(2), or (a)(3) of
§ 1B1.3”); id. § 1B1.3(a)(1)–(3). The “same course of conduct”
and “common scheme or plan” tests apply only if the federal
count of conviction may be grouped under § 3D1.2(d) of the
Guidelines. Id. § 1B1.3(a)(2).
The Sentencing Commission’s direction finds straightfor-
ward application on the record before the district court.
Boyle’s state court offense conduct—a single act of sexually
assaulting a child—is not “relevant conduct” to his federal
convictions for producing sexually exploitative images and
possessing child pornography.
Two of the three possible “types” of relevancy can be ruled
out based on the chronology of events: the conduct at the
heart of Boyle’s state charge occurred on or before February
10 No. 21-1093
3, 2019, but his federal conviction captured conduct from Feb-
ruary 4, 2019 onward. The abuse underpinning his state con-
viction was therefore not committed “during the commission
of” his federal offenses, nor can Boyle’s earlier sexual abuse
of the victim reasonably be characterized as conduct commit-
ted “in preparation for” his federal offenses. Id. § 1B1.3(a)(1).
And because the state conduct occurred before the federal
conduct, Boyle’s state conviction does not encompass “harm
that resulted from” his federal conduct either. Id.
§ 1B1.3(a)(3).
These conclusions narrow the pertinent inquiry. Boyle’s
state conviction is only “relevant conduct” for § 5G1.3(b) pur-
poses if the sexual abuse was part of the “same course of con-
duct” or a “common scheme” as his production or possession
of images and videos of child sexual abuse. At this point,
however, yet another Guidelines cross reference comes into
play because the definition of relevant conduct in
§ 1B1.3(a)(2) applies “solely with respect to offenses of a char-
acter for which § 3D1.2(d) would require grouping of multi-
ple counts.” And by following that cross reference to
§ 3D1.2(d), we learn that Boyle’s seven counts of conviction
for producing child pornography under 18 U.S.C. § 2251(a)
cannot be grouped. Id. § 3D1.2(d) (explaining that “[s]pecifi-
cally excluded from the operation of this subsection” are of-
fenses covered by § 2G2.1, which includes violations of 18
U.S.C. § 2251(a)).
That leaves only Boyle’s conviction for possession of child
pornography. Possession offenses may be grouped under
§ 3D1.2(d). Id. (stating that offenses covered by § 2G2.2, in-
cluding violations of 18 U.S.C. § 2252A(a)(5)(B), “are to be
grouped”). Boyle’s state conviction may therefore qualify as
No. 21-1093 11
relevant conduct under § 1B1.3(a)(2) if the sexual abuse of the
minor victim was part of the “same course of conduct” or
“common scheme or plan” as his possession of child pornog-
raphy.
“For two or more offenses to constitute part of a common
scheme or plan,” the Guidelines explain, “they must be sub-
stantially connected to each other by at least one common fac-
tor, such as common victims, common accomplices, common
purpose, or similar modus operandi.” Id. § 1B1.3 app. note
5(B)(i). Alternatively, offenses may be deemed part of the
“same course of conduct” if they are sufficiently related as to
constitute “part of a single episode, spree, or ongoing series
of offenses.” Id. § 1B1.3 app. note 5(B)(ii).
Against this backdrop, we conclude that Boyle’s state sex-
ual abuse conviction is neither part of a “common scheme or
plan” nor part of the “same course of conduct” as his federal
child pornography possession conviction. The two offenses
involved different victims, constituted materially different
conduct, and were at least somewhat separated in time.
Viewed from a high enough level of generality, Boyle’s of-
fenses of possessing child pornography and sexually abusing
a child are undoubtedly related: both involve the sexual ex-
ploitation of children. But the Sentencing Guidelines demand
a more particular comparison of the conduct at issue, and
Boyle’s state offense is not “relevant conduct” under either
the “common scheme” or “same course of conduct” test pre-
scribed by the Guidelines.
* * *
In sum, because Boyle’s state offense was not “relevant
conduct” to his federal offense within the meaning of
12 No. 21-1093
§ 5G1.3(b), the district court did not err in imposing his 50-
year federal sentence to run consecutive to his 40-year state
sentence. Neither of Boyle’s alleged procedural errors there-
fore warrants remand for resentencing.
B
That leaves Boyle’s challenge to the substantive reasona-
bleness of his 50-year federal sentence. Our review is deferen-
tial, as we will “presume that a within-guidelines sentence is
reasonable.” Morgan, 987 F.3d at 632 (cleaned up).
Everyone recognizes that Boyle’s 50-year federal sen-
tence—which he will only begin to serve after finishing his 40-
year state sentence—effectively amounts to a life sentence.
“Barring proceedings that vacate” part of Boyle’s sentences,
“he will die in prison” and “death in prison is not to be or-
dered lightly.” United States v. Nania, 724 F.3d 824, 841 (7th
Cir. 2013) (citation omitted); see also United States v. Patrick,
707 F.3d 815, 820 (7th Cir. 2013) (“[A] sentence of death in
prison is notably harsher than a sentence that stops even a
short period before.”).
Boyle’s challenge to the length of his sentence blends sub-
stantive and procedural concerns but, at bottom, rests on his
belief that the district court inadequately justified its decision
to impose a consecutive federal sentence. To our eye, how-
ever, three interrelated and permitted considerations stand
out in the district court’s remarks at sentencing:
• Gravity of Offense Conduct: Faced with con-
duct that defense counsel conceded was “ab-
horrent” and “terrible and damaging and
tragic,” the district court emphasized that
Boyle “deserve[d] the same sentence” that
No. 21-1093 13
he imposed on his victim—“a lifetime of
nightmares and self-doubt”—so he “can
consider what [he] did wrong.”
• Victim Protection: The court was resolute in
its desire to impose a sentence that would
protect the victim and her mother from
Boyle. In short, the district court selected a
sentence sure to prevent Boyle from abusing
or even “shar[ing] the same air as [the vic-
tim]” ever again.
• Punishing Distinct Crimes: The district court
saw Boyle’s federal offense conduct as dis-
tinct from his state offense conduct. Indeed,
it saw the production and livestreaming of
the video of his sexual assault of the child as
acts reflecting incremental wrongdoing. As
the court put it, Boyle decided that the abuse
itself was “not enough” and that he instead
“needed to stream his own sexual abuse” of
the victim for others to see, thereby produc-
ing enduring images of that abuse that
would follow the child forever. And Boyle’s
possession of child pornography—conduct
he engaged in “on a completely different
day and a completely different time pe-
riod”—further “subject[ed] other young
people who have been abused to the per-
verted and distorted and sick nature of those
seeking the internet for their satisfaction.”
On this record, we have no doubt the district court ade-
quately considered the § 3553(a) sentencing factors. The
14 No. 21-1093
district court selected and structured a sentence to recognize,
perhaps above all else, that the “senseless acts” of Boyle and
offenders like him “damage children for the rest of their
lives.” Nania, 724 F.3d at 842. The court could have imposed a
longer federal sentence but chose to reach the same result by
running Boyle’s federal sentence consecutive to his state sen-
tence. See U.S.S.G. § 5G1.3(d). That was not an abuse of dis-
cretion.
Because the district court properly calculated Boyle’s ad-
visory Guidelines range and did not abuse its discretion in
imposing a consecutive 50-year federal sentence, we AFFIRM.