By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law
Recently, the Seventh Circuit Court of Appeals reviewed what the district court called one of the most serious crimes it has ever seen. In doing so, it looks at evidence submitted during trial, consecutive v. concurrent sentences, supervised-release conditions, and restitution. So just what exactly occurred in USA v. Bour you ask?
Bour paid a woman on several occasions to molest her daughters, who were between 4-18 months and 3-5 years during the course of abuse. Bour, himself, sexually touched the youngest child, penetrated her mouth and genitals, and filmed at least two encounters with her. Additionally, he photographed the genitals of the older daughter. Bour later plead guilty to purchasing a child for the production of child pornography under 18 U.S.C. § 2251A(b), three counts of producing child pornography under 18 U.S.C. § 2251(a), and one count of possessing child pornography under 18 U.S.C. § 2252(a)(4). Bour was sentenced to life for purchasing a child for pornography production and 85 consecutive years on the remaining counts.
Bour objects to the description of the masturbation videos based on claims of the Fifth and Fourteenth Amendment right to privacy. Under 18 U.S.C. § 3661, Congress provides that for the purpose of imposing an appropriate sentence, no limits should be placed on information concerning the background, character, and conduct of a person. The guidelines, statutory law, and the constitution only limit information on certain enumerated characteristics from being admitted. Bour’s masturbatory conduct was relevant to sentencing in that it demonstrated that he took pleasure in producing graphic films.
The court reviewed Bour’s challenge on imposing consecutive versus concurrent imprisonment terms on procedural error and substantive reasonableness grounds. Bour alleges the district judge erred in failing to explain why he imposed consecutive sentences. If the sentence for the highest statutory maximum is “less than the total punishment, the district court may run counts consecutively”; when a ruling is made above this guideline an explanation must be given. Sentencing “based on factors sufficiently particularized to the individual circumstances of the case” will not be found to be in error. As the district court considered all factors set out in Bour’s memorandum and considered mitigation, no procedural error is found. Further, a sentence is not deemed unreasonable because it is above the advisory sentencing guidelines. “While a more significant justification is needed for a major departure from the guidelines, that justification need not be extraordinary”. Considering the horror of Bour’s crimes, the district court did not abuse its discretion in substantive reasonableness. The judge believed it was necessary to ensure Bour never left prison.
The court reviewed the challenge of supervised release for plain error. Bour challenged six conditions of supervised release that were inapplicable to him, overbroad, or vague. He failed to show that his substantive rights, the criminal proceeding’s fairness or integrity, or the proceeding’s public reputation would suffer. As Bour is serving a life sentence he will never be subject to his conditions of release, therefore his point is moot.
Finally, Bour challenged the restitution award, which was reviewed for plain error. If a victim’s losses are not apparent ten days before sentencing, the prosecutor must inform the court, and the court shall set a final-determination date no more than ninety days from sentencing. As the minor victims had no guardian at the time of sentencing, the government could not decide the needed restitution until after the minors received court-appointed guardians. However, if the district court makes it clear that restitution will be ordered, the power is retained to set restitution after the time period. The district judge made it clear 89 days after sentencing that restitution would be ordered, reserving the right to set it at a later time.
The court affirmed all challenges in this order. This case sets out a precedent that not only will affect the defendant, but the rest of society. Bour’s case proves that children are among one of the most protected classes of individuals and we aim to keep it that way.