Submitted: January 12, 2018
from United States District Court for the Northern District
of Iowa - Cedar Rapids
SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
Bordman appeals his sentence after pleading guilty to sexual
exploitation of a child and possession of child pornography.
He argues that the district court plainly erred in its factual
analysis of his history of victimization and imposed a
substantively unreasonable sentence of 600 months'
imprisonment. He also argues that the district court abused
its discretion in awarding $3, 000 in restitution to a
child-pornography victim whose videos he possessed. Finally,
he argues that the court erred in imposing two special
conditions of supervised release related to Bordman's use
of pornography and erotica. We affirm the judgment of the
pleaded guilty to sexual exploitation of a child and
possession of child pornography involving a prepubescent
minor or a minor who had not attained 12 years of age. The
presentence investigation report (PSR) recounted
Bordman's offense conduct. In July 2016, Google submitted
three cybertips to the National Center for Missing and
Exploited Children (NCMEC) concerning child pornography
images uploaded to Boardman's account. An image uploaded
on August 29, 2015, depicted Bordman's penis pressed
against the mouth of N.B., his one-and-a-half-year-old
daughter. This account also contained an image of Bordman
displaying his penis as N.B., sitting in a stroller, looked
up at it.
used a cell phone and the Kik Messenger service to send child
pornography to and receive child pornography from others. On
July 4, 2016, while using the Kik Messenger service to chat
with another man, Bordman re-posted one of the images with
his daughter he had uploaded in 2015. Bordman then posted
several more pornographic images of N.B. at the man's
request. Bordman also sent pornographic depictions of N.B. to
two other persons and told others about his sexual abuse of
N.B. In addition, Bordman sent child pornography to other Kik
members and to an acquaintance. He stored child pornography
in his Dropbox account, including depictions of adult males
sexually penetrating toddlers and infants. Included in
Bordman's Dropbox account was a "Sweet Sugar"
Internet child pornography series. Two of the videos in the
series depicted a victim known as "Pia."
included information describing the sexual abuse that Bordman
endured as a child. Bordman reported that both of his parents
were convicted and imprisoned for sexually abusing him and
his sisters. His father died while in prison. Bordman was
approximately three to four years old at the time of the
abuse. His parents forced him to engage in sexual contact
with his two sisters, who were ages nine and six at the time.
Court records reflected the convictions and sentences of
Bordman's parents for the sexual abuse. In one court
opinion, the court recounted Bordman's father's
admission to sexually abusing Bordman and Bordman's
subsequent examination by a pediatric nurse confirming
injuries consistent with abuse. After his parents'
imprisonment, Bordman spent the remainder of his childhood in
foster or group homes.
calculated a total offense level of 43 and a criminal history
category of I, resulting in an advisory Guidelines range of
life imprisonment. But because Bordman's statutory
maximum sentence was less than the maximum of the applicable
Guidelines range, his Guidelines range became 600 months'
imprisonment. See U.S.S.G. § 5G1.1(b).
to sentencing, an attorney representing three victims,
including Pia, in the "Sweet Sugar" Internet child
pornography series submitted a restitution request. The
government then submitted a supplemental sentencing
memorandum and attached three exhibits. Exhibit 1 contained
the restitution request and supporting documentation. The
documentation included a victim impact statement by Pia's
mother, a report from psychologist Dr. Marsha Hedrick, and an
attorney costs declaration. Dr. Hedrick estimated that the
costs to Pia, including therapy, related expenses, and a
vocational assessment and counseling, would be $91, 900.
Pia's attorney estimated that her costs incurred
(excluding attorney's fees) were $10, 187.13. Exhibit 2
contained relevant pages from a NCMEC report, including
information on three child pornography videos from this
series that Bordman possessed in his Dropbox account. In its
supplemental sentencing memorandum, the government added
one-third of the attorney's costs (because the attorney
represented three victims in the "Sweet Sugar"
series) to Dr. Hedrick's estimate, resulting in a total
of $95, 295.71. Exhibit 3 contained information from the U.S.
Department of Justice listing defendants previously ordered
to pay restitution to each of the three victims. The
government noted that Exhibit 3 listed 31 other defendants
who had been ordered to pay restitution to Pia or to all
three victims. Dividing $95, 295.71 by 32 (including Bordman)
resulted in a restitution amount of $2, 977.99. But the
government noted that this figure did not account for other
factors. The government identified as a relevant factor the
degrading treatment of Pia in the video and how its
dissemination harmed Pia. As a recipient of that video,
Bordman contributed to Pia's harm. Based on its
submission, the government recommended a restitution amount
of $3, 000.
sentencing, the district court adopted the undisputed
recommendations in the PSR and calculated a Guidelines range
of 600 months' imprisonment. The court asked Bordman
whether he should pay $3, 000 in restitution to Pia.
Bordman's counsel replied that Bordman challenged the
amount the government requested. Bordman did not object to
the admission of Exhibits 1, 2, and 3.
addition, the parties stipulated that an additional defendant
had been ordered to pay restitution to Pia, which increased
the number of defendants to 32 from 31 listed in Exhibit 3.
The government then clarified that if one divided $95, 295.71
by 33(the 32 defendants who already had paid restitution plus
Bordman), the resulting figure was $2, 887.75.
Joshua Bell of the Cedar Rapids Police Department then
testified about the child pornography found in Bordman's
Dropbox account. He testified that Exhibit 2 contained the
filenames of three files from Bordman's Dropbox account
relating to the "Sweet Sugar" series. According to
Bell, an investigator identified Pia as the victim depicted
in two of the videos, which were identical. Pia was
approximately four years old when the child pornography of
her was produced. Bell testified that, in comparison with
other child pornography depictions he had observed, these
identical videos were "more graphic." Redacted
Sentencing Transcript at 20, United States v.
Bordman, No. 1:16-cr-00081-LRR-1 (N.D. Iowa June 12,
2017), ECF No. 65-1. Bell did confirm, however, that Bordman
was not depicted in these identical videos and that he had no
information that Bordman was involved in producing the videos
Bell's testimony, the government discussed several
factors affecting the calculation of a restitution award in
this case. In addition to the "numerical
calculation," these factors include the child
pornography being videos instead of images; there are two
copies of the same video in different folders; the "very
aggravating factor" of the nature of the video; and the
resulting harm to the victim. Id. at 23-24.
Bordman's counsel renewed Bordman's objections to two
special conditions of supervised release. The conditions
related to Bordman's use of pornographic and erotic
materials. Bordman also requested that the court vary
downward to 15 to 20 years' imprisonment.
district court overruled Bordman's objections to the
special conditions of supervised release, and, relevant to
this appeal, imposed the following two conditions:
2) The defendant must not operate or use photographic
equipment, a computer, or any electronic storage device to
view or produce any form of pornography or erotica.
3) The defendant must not own or possess any pornographic
materials. The defendant must not use any form of pornography
or erotica nor enter any establishment where pornography or
erotica can be obtained or viewed.
Judgment at 4, United States v. Bordman, No.
1:16-cr-00081-LRR-1 (N.D. Iowa June 13, 2017), ECF No. 54.
court also declined to vary downward and, after evaluating
the 18 U.S.C. § 3553(a) factors, it sentenced Bordman to
600 months' imprisonment. In evaluating the §
3553(a) factors, the court addressed Bordman's argument
that he was a sexual abuse victim, stating, "In terms of
his own reported abuse as a child, I want to make sure that
it's understood that there is no cause and effect
relationship between being a victim of child abuse and
victimizing children as an adult, and there's nothing in
this record that makes that assertion." Redacted
Sentencing Transcript at 33. Bordman did not object to the
court also ordered Bordman to pay $3, 000 in restitution to
Pia, the amount recommended by the government.
appeal, Bordman argues that the district court plainly erred
in essentially dismissing his history of victimization. He
also argues his sentence of 600 months' imprisonment is
substantively unreasonable. In addition, he contends that the
district court abused its discretion in awarding $3, 000 in
restitution to Pia. Finally, Bordman argues that the court