United States v. Boyle

28 F.4th 798

UNITED STATES of America, Plaintiff-Appellee,

v.Gary L. BOYLE, Defendant-Appellant.

No. 21-1093

United States Court of Appeals, Seventh Circuit.

Argued October 28, 2021

Decided March 14, 2022

Jeffrey Kienstra, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Lew A. Wasserman, Attorney, Law Offices of Lew A. Wasserman, S.C., Milwaukee, WI, for Defendant-Appellant.

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 similar conduct. The district court was well aware of the length and gravity of the 90-year cumulative sentences. What mattered most, however, was the atrocity of Boyle's offense 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 videos of suspected child pornography for law enforcement officials. Agents investigated and confirmed that the images and videos depicted a young girl, about eight years old, undressing 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 member 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 February 3, 2019. The state court sentenced Boyle to 40 years' imprisonment.

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 charges stemmed from the videos and images Boyle created on February 4, 2019—the day he livestreamed the sexual assault 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 resolving Boyle's two objections to the presentence investigation report, 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 maximum 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 consecutively to one another and to Boyle's 40-year state sentence. Defense counsel acknowledged that "the Court c[ould] fashion 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 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 remained 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 [daughter's] childness, her innocence, her dreams, self-esteem, and self-worth" and that her daughter had become fearful, distrustful, 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 information 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 different day and a completely different time period," and subjected children other than Boyle's victim "to the perverted and distorted and sick nature" of individuals seeking out child pornography on the internet.

Finally, the district court announced that Boyle's cumulative 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 sexual 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 federal 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 sentenced 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 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 district court only for plain error. See United States v. Roush , 2 F.4th 616, 618 (7th Cir. 2021). If the district court properly calculated the advisory Guidelines range, we review the ultimate sentence deferentially under an abuse of discretion standard. See Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (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 insists 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, require resentencing.

Boyle is right that a district court's failure to correctly calculate a defendant's Guidelines range constitutes procedural error. See Rosales-Mireles v. United States , ––– U.S. ––––, 138 S. Ct. 1897, 1904, 201 L.Ed.2d 376 (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 objection if he "intentionally relinquishes or abandons" an argument 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 failure to make the objection in the district court, and he "merely 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 district court committed plain error that affected both his substantial rights and the fairness or integrity of the proceedings. See United States v. Olano , 507 U.S. 725, 735–36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ; Oliver , 873 F.3d at 607.

We see nothing to Boyle's objection that the district court, in determining the advisory Guidelines range,...