United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3229
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Michael Angelo Borromeo, *
*
Defendant - Appellant. *
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Submitted: June 16, 2011
Filed: September 30, 2011
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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LOKEN, Circuit Judge.
In February 2009, fifteen-year-old J.A.B. reported to school officials that she
had been raped by Michael Borromeo, the leader of her scout troop who had lived
with J.A.B.’s family during the summer of 2007. An investigation uncovered
lascivious photographs of J.A.B. and her thirteen-year-old sister on Borromeo’s cell
phone and computer and a pornographic video depicting J.A.B. and an adult male.
The investigators learned that Borromeo had sexually abused J.A.B. since late 2007,
abuse that included oral, vaginal, and anal sex. Borromeo admitted the accusations
and was charged with seven counts of child pornography offenses. After Borromeo’s
arrest, his twelve-year-old daughter, O.M.B., reported that he had sexually abused her
regularly for six years, including vaginal and anal sex, and that she had been present
when Borromeo had sex with J.A.B.
Borromeo pleaded guilty to one count of producing child pornography in
violation of 18 U.S.C. § 2251(a). The plea agreement included sentencing stipulations
that produced an advisory guidelines range of 262-327 months in prison but were not
binding on the district court. The subsequent Presentence Investigation Report (PSR)
applied a multiple victims upward adjustment and the offense level prescribed for
repeat and dangerous sex offenders against minors, resulting in a recommended
guidelines sentence of life in prison. At sentencing, Borromeo withdrew his
objections to the PSR’s fact recitations, and neither party objected when the district
court1 adopted the guidelines determinations recommended in the PSR. This resulted
in an advisory guidelines range of 360 months, the statutory maximum sentence. See
18 U.S.C. § 2251(e); U.S.S.G. § 5G1.1(a).
Both parties urged the court to vary downward to the plea agreement range.
The government urged a 327-month sentence, the top of that range; Borromeo urged
262 months, the bottom of that range. J.A.B. and members of her family opined in
victim impact statements that life in prison was the only way to protect other children
from Borromeo. The district court sentenced him to 360 months in prison, the
guidelines sentence. Borromeo appeals, arguing the court imposed a substantively
unreasonable sentence. We review this issue under the abuse-of-discretion standard,
“tak[ing] into account the totality of the circumstances.” Gall v. United States, 552
U.S. 38, 51 (2007). The within-guidelines sentence is presumptively reasonable on
appeal. See Rita v. United States, 551 U.S. 338, 347 (2007). We affirm.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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“A district court abuses its discretion when it (1) fails to consider a relevant
factor that should have received significant weight; (2) gives significant weight to an
improper or irrelevant factor; or (3) considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.” United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quotation omitted). Borromeo does not
argue that the district court failed to consider a relevant factor or gave significant
weight to an improper or irrelevant factor. Rather, he argues the court gave too much
weight to the seriousness of his offense and the uncharged abuse of other minors, and
too little weight to mitigating circumstances, namely, his unfortunate personal history
and the fact that he did not distribute the child pornography.
At sentencing, the district court expressly considered the sentencing position
memoranda and arguments presented by both parties, received victim impact
statements, and then stated at length its reasons for the sentence imposed. The court
described in detail why Borromeo was guilty of “criminal conduct of a severity that
we don’t see very often,” making him “a danger to the community in a way that is
extreme.” The court acknowledged that Borromeo had “a very difficult upbringing”
in which he himself was victimized. “And it’s true, as your lawyer says, that victims
often become perpetrators. But the cycle of violence has got to stop somewhere, and
you created three more victims in this case.”
The court then considered Borromeo’s argument that the statutory maximum
sentence was unwarranted because he did not share or distribute the pornographic
images he produced. The court acknowledged that “the victimization would be much
more severe” had the images been distributed but noted that this factor was “counter-
balanced by the extreme harm and the fact that these victims are never, ever, ever
going to recover.” The court concluded: “this is one of those cases where the
statutory maximum is the right sentence for you. . . . I just don’t think anything less
is going to protect the public or adequately punish you for these really extraordinarily
egregious crimes.”
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Having carefully considered the totality of the circumstances revealed by the
sentencing record, we have no difficulty concluding that this is not the “unusual case
when we reverse a district court sentence -- whether within, above, or below the
applicable Guidelines range -- as substantively unreasonable.” Feemster, 572 F.3d at
464 (quotation omitted). The district court considered all the mitigating circumstances
urged by Borromeo and concluded, not unreasonably, that they were outweighed by
the seriousness of the offense and the special relationships with the child victims that
Borromeo had fostered and then abused. “The district court has wide latitude to weigh
the § 3553(a) factors in each case and assign some factors greater weight than others
in determining an appropriate sentence.” United States v. Bridges, 569 F.3d 374, 379
(8th Cir. 2009). The victim relationships that Borromeo manipulated, the severe
danger he presents to the public, and the repetitive nature of his egregious crimes are
“precisely the kind of defendant-specific determinations that are within the special
competence of sentencing courts.” Feemster, 572 F.3d at 464 (quotation omitted).
There was no abuse of the district court’s substantial sentencing discretion.
The judgment of the district court is affirmed.
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