United States v. Eugene Borkowski , 190 F. App'x 528 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3550
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Eugene Borkowski, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: May 18, 2006
Filed: August 18, 2006
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Before LOKEN, Chief Judge, JOHN R. GIBSON and COLLOTON, Circuit Judges.
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PER CURIAM.
Eugene Borkowski pleaded guilty to child pornography possession and
distribution offenses after an investigation uncovered more than 600 pornographic
images, many depicting adult men engaged in sexually explicit acts with young
children. The presentence investigation report recommended a four-level increase for
possession of “material that portrays sadistic or masochistic conduct,” U.S.S.G. §
2G2.2(b)(3) (2003), which produced an advisory guidelines sentencing range of 87
to 108 months. At sentencing, the district court1 overruled Borkowski’s objection to
1
The HONORABLE GARY A. FENNER, United States District Judge for the
Western District of Missouri.
this increase and sentenced him to 108 months in prison. Borkowski appeals, arguing
as he did to the district court that the Ex Post Facto Clause and the Due Process
Clause prohibit the retroactive application of United States v. Booker, 543 U.S. 220
(2005), in this manner. More specifically, he argues that he “is entitled to the benefit
of the Sixth Amendment holding of Blakely and Booker, but cannot be disadvantaged
by the remedial portion of Booker.”
We have squarely rejected this argument in a number of decisions issued after
the filing of Borkowski’s appeal brief. United States v. Lyons, 450 F.3d 834, 837-38
(8th Cir. 2006); United States v. Counce, 445 F.3d 1016, 1019 (8th Cir. 2006); United
States v. Wade, 435 F.3d 829, 831 (8th Cir. 2006). To briefly summarize these
controlling decisions, the Ex Post Facto Clause does not apply to actions by the
judiciary; Borkowski’s sentence does not violate the due process concept of fair
warning because a sentencing court could have imposed the four-level enhancement
based on facts found by a preponderance of the evidence at the time he committed the
offenses; and the Supreme Court in Booker expressly directed that both facets of its
decision be applied retroactively. See Wade, 435 F.3d at 831-32.
The judgment of the district court is affirmed.
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