United States v. Christopher Bour
804 F.3d 880
7th Cir.2015Background
- Christopher Bour repeatedly paid a mother (Natisha) to sexually abuse and film her infant daughter (Jane Doe) and photographed the genitals of her older daughter; FBI investigation followed and Bour pleaded guilty to multiple child-pornography offenses.
- Bour pleaded guilty to purchasing a child for production of child pornography (18 U.S.C. §2251A(b)), three counts of producing child pornography (18 U.S.C. §2251(a)), and one count of possessing child pornography (18 U.S.C. §2252(a)(4)).
- At sentencing the court considered described homemade masturbation videos of Bour (argued by Bour to be private, lawful conduct) and admitted their description as relevant to sentencing and BOP purposes.
- The district court sentenced Bour to life on the purchase count and an additional 1,020 months (85 years) consecutive on remaining counts, and imposed lifetime supervised-release conditions.
- The district court deferred restitution amount beyond sentencing because victims had no guardian; 89 days after sentencing it found restitution applicable and later (235 days after sentencing) ordered $75,000 restitution.
Issues
| Issue | Bour's Argument | Government's / District Court's Position | Held |
|---|---|---|---|
| Consideration of masturbation videos at sentencing | Videos depicted lawful intimate conduct protected by Lawrence and thus were irrelevant/privileged | Video conduct was relevant to Bour's pattern, intent, and pleasure in producing graphic child porn; §3661 allows wide evidentiary consideration | Court affirmed: videos were admissible and relevant to sentencing |
| Consecutive vs. concurrent sentences | Court erred by imposing consecutive terms without adequate explanation; procedurally flawed and substantively excessive | District court considered §3553(a) factors, found crimes extraordinarily severe, intended incapacitation/deterrence; discretion to impose consecutive terms | Consecutive imposition contained a procedural inconsistency but was harmless because the life sentence alone made result identical; substantively reasonable |
| Supervised-release conditions | Conditions were inapplicable, overbroad, or vague; should be reviewed | Conditions related to offense and sentencing goals; district courts can modify conditions later | Plain-error review: no reversal because Bour serves life (will not reach supervised release) and conditions can be modified later |
| Timing of restitution order | Restitution ordered beyond 90-day deadline is invalid | District court properly deferred final amount due to lack of guardian for victims and signaled intent within 90 days; Dolan allows later fixation if court timely indicates restitution will be ordered | Court upheld restitution: announcing restitution within 90 days and fixing amount later was valid; $75,000 order affirmed |
Key Cases Cited
- Pepper v. United States, 562 U.S. 476 (2011) (broad recognition that courts may consider a defendant's background, character, and conduct at sentencing)
- Lawrence v. Texas, 539 U.S. 558 (2003) (constitutional protection for certain intimate conduct)
- United States v. Jackson, 547 F.3d 786 (7th Cir. 2008) (sentencing departures must be particularized to individual circumstances)
- Gall v. United States, 552 U.S. 38 (2007) (standard for procedural and substantive reasonableness of sentences)
- Harris v. Warden, 425 F.3d 386 (7th Cir. 2005) (life and life-plus-x years effectively identical in federal system without parole)
- Dolan v. United States, 560 U.S. 605 (2010) (district court may set restitution amount after 90 days if it timely indicates restitution will be ordered)
- United States v. Silvious, 512 F.3d 364 (7th Cir. 2008) (encouraging defendants to seek modification of supervised-release conditions in district court before appeal)