Sections:

Article

Two, three many Penn States in Chicago's charter schools 'portfolio'?... As CPS moves again to expand unregulated charter schools, it's time to take another long look at Josef Nurek, the sex criminal who was principal of Chicago International Charter School's 'Belden Campus'

One of the reasons why public schools have to remain strictly regulated is that public school teachers and other workers are in control of children of all ages, and in an enormous position of trust both by the families of those children and by society in general. Many of these children (and their families) are particularly vulnerable at various times in their lives. To expose those children and their families — during their vulnerability — to predators is criminal not only on the part of the predator, but in the view of society, criminal on the part of the institution that condones — or even encourages — the predation.

Penn State's Jerry Sandusky following a court appearance on November 10, 2011, in Pennsylvania.Let's talk about charter schools, the epitome of "deregulation" in public education. During the years Arne Duncan served as "Chief Executive Officer" of Chicago's public schools (July 2001 to January 2009), the number of charter schools was expanded from a handful (about a dozen) to nearly 100. Charters were handed out like candy during Trick or Treat, and charter "entrepreneurs" were praised. More than $50 million was put into the Chicago charter foundation (headed most of those years by Phyllis Lockett; now under a new name, but with the same game). Chicago charter schools became a "model" for the national expansion of the program.

What happened next, based on a decade of lies and deregulation, was massive for the entire USA. Chicago's UNO tutored New Orleans on how to abolish its public schools and replace most of them with charter schools. The former White House Chief of Staff, Rahm Emanuel, became mayor of Chicago and went around claiming — it's a lie, by the way — that Chicago's Noble Network of charter schools were the best high schools in Chicago. Every time Rahm talked about public schools, it seemed like everything he "knew" he learned from the movie "Waiting for Superman" or some other mindless charter school propaganda. And, of course, Rahm Emanuel sent his own children to one of the most expensive private schools in Chicago, the University of Chicago Lab School (not to a public school; not to a "public" charter school). And Arne Duncan went to Washington D.C. as U.S. Secretary of Education and every state in the USA was forced to expand charters or lose the "Race To The Top" for the top of the heap of federal dollars during the Great Recession).

The Chicago charter schools plan was clearly as great an experiment in deregulation as the repeal of Glass Siegel had been in banking. But unlike the Wall Street debacle, the Chicago charter schools debacle was viewed, and still is, as an unequivocal good thing.

Or was it just another way to encourage pedophiles to proclaim their "love" for children and get access to the most vulnerable children in one of the most ghettoized cities in the world?

During four of the more than eight years he served as Chief Executive Officer of Chicago's Public Schools, Arne Duncan refused to add to regulations over the expanding charter schools he promoted. During the years when the trial, conviction and appeal of former charter school principal Joseph Nurek were taking place (2004 - 2008), Duncan blocked any attempt to add conditions to the governance of the rapidly expanding network of charter schools in Chicago. At the same time, the CPS Inspector General never investigated the numerous problems, including allegations of sexual misconduct, against Chicago charter school teachers and staff. Without serious regulatory oversight, charter schools in Chicago expanded under Mayor Richard M. Daley's "Renaissance 2010" program from a handful when Duncan was appointed CEO in July 2001 to nearly 100 (charter "schools" and "campuses") by the time Duncan was made U.S. Secretary of Education by President Barack Obama in January 2009. At the time of the above photograph, taken by Substance during the December 20, 2006 meeting of the Chicago Board of Education, Duncan was serially praising charter schools which were making pitches for expansion (all of which Duncan supported), including Chicago International Charter School (CICS), where Nurek had been a principal while housing an underage boy for sexual purposes at his home at 6811 W. Addison Street in Chicago, two miles from the school where he worked as principal. Substance photo by George N. Schmidt. Since the beginning of the mania for unregulated charter schools, first in Chicago, and now thanks to the "Race To The Top" and other Arne Duncan programs, nationally, it's time to take another looks at how Chicago's charter schools have covered up sex criminals in their midst. Substance reporters have heard of a number of cases of these problems, and we have reported a few. The most famous of those is the case of Joseph Nurek, a sex criminal from Michigan who came to Illinois and was able, within a few years, to become principal of a Chicago charter school, where he began his career of abusing children anew.

Chicago charter schools are largely unregulated, and charter operators have been able to simply cover up things monstrosities this. The most famous of the charter school pedophiles — Joseph Nurek of Chicago International Charter School (Belden Campus) — came to light during the Arne Duncan years in Chicago. The story of Nurek — and his subsequent arrest, trial, conviction, and sentencing to 20 years in federal prison — came about not because the charter school did anything about him — nor because CPS or Arne Duncan did anything — but because the police did their jobs. In fact, if Chicago Public Schools and Chicago International Charter Schools had continued in their paths regarding Joseph Nurek, he would still be in power over children in Chicago today. They even had Nurek testifying about the glories of charter schools at the U.S. Department of Education shortly before his indictment.

But rather than continue drawing a new narrative, it's possible (as it is now with the Jerry Sandusky scandal in Pennsylvania) to read the official record. One of the most comprehensive comes in the federal court decision against Nurek's appeal. The Seventh Circuit decision was published in August 2009, after Arne Duncan had left Chicago without ever having commented on the Nurek case. But readers who wish to think about how seriously this case should have been viewed in Chicago can consider the facts, as recounted in the decision of the highest federal court to review the case.

As the Seventh Circuit reports below, Nurek received a sentence of 240 months, which he is in the process of serving now. Prior to reading the Seventh Circuit decision on Nurek's sentencing (below), readers might wish to think about the fact that Nurek's crimes were not exposed due to any work by Chicago's charter schools, or by the Chicago Board of Education (whose CEO during those years was Arne Duncan), but by the work of federal agents working for ICE whose job it was to locate and bring to justice international child pornographers. When Nurek was arrested, he had living at his home at 6811 W. Addison in Chicago an underage male student. As the record below shows, Nurek was only convicted of the "child pornography" charge because it was all that was necessary to put him in prison for 20 years. His other crimes are documented in the federal narrative, but the refusal of Chicago's public schools administration and Chicago's charter school providers and "authorizers" to regulate the hiring and performance of charter school teachers and administrators continues. Every year, Chicago teachers who have worked in real public schools have been fired for no reason, with a massive escalation of the terminations beginning in June 2010 under CEO Ron Huberman and continuing during the summer of 2011 under CEO Jean-Claude Brizard. As Substance goes to press in November 2011, Brizard is planning to announce another attack on real public schools, many of which will be closed, while their buildings are given away to charter schools.

United States Court of Appeals, Seventh Circuit.

UNITED STATES v. NUREK. UNITED STATES of America, Plaintiff-Appellee, v. Joseph T. NUREK, Defendant-Appellant. No. 07-3568.

Argued Sept. 3, 2008. -- August 21, 2009

Before EASTERBROOK, Chief Judge, and ROVNER and SYKES, Circuit Judges. Julie B. Ruder (argeud), Office of U.S. Attorney, Chicago, IL, for Plaintiss-Appellee.Daniel T. Cook (argued), Office of Federal Public Defender, Springfield, IL, Jonathan E. Hawley, Chief Assistant Public Defender, Richard H. Parsons, Office of Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Joseph Nurek pleaded guilty to receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and was sentenced to 240 months in prison, the statutory maximum.   On appeal Nurek challenges the district court's application of the two-level sentencing guidelines enhancement for obstruction of justice, see U.S.S.G. § 3C1.1;  the government's refusal to move for a third-point reduction in his offense level for acceptance of responsibility, see U.S.S.G. § 3E1.1(b);  the district court's use of the 2006 Guidelines Manual (in effect at the time of sentencing) instead of the 2003 Guidelines Manual (in effect at the time of his offense);  and the overall reasonableness of his sentence.   We reject these challenges and affirm.

I. Background

Joseph Nurek in one photo obtained by Substance.Joseph Nurek has a Ph.D. in education and worked as a principal at various elementary and middle schools in Michigan and Illinois from 1984 until 2004. In March 2004 federal agents executed a search warrant at Nurek's Chicago home looking for evidence of child pornography.   Nurek's computer was seized and forensic analysis revealed that he had stored thousands of downloaded images of child pornography on it. At the time, the agents were also investigating Nurek for sexually abusing three children, whom we refer to as Victims A, B, and C. The alleged abuse of Victims A and C occurred in the early 1990s in Michigan;  the alleged abuse of Victim B, in contrast, was ongoing at the time of the search.

In 1991 Nurek was charged in Michigan state court with sexually abusing a student from the middle school where he was the principal;  a second count alleged that Nurek distributed obscene material to the child. The Michigan investigation had initially involved two student victims, but the State proceeded on charges involving only one victim because the second child did not want to testify. (The 2004 investigation into the alleged abuse of Victims A and C involved different children — who were by then adults — although the abuse dated from the same general time period as the Michigan prosecution.) The sexual-abuse count in the Michigan case was dismissed at the preliminary hearing after the judge held that the child's description of Nurek's conduct did not constitute “sexual contact” under Michigan law. Nurek was acquitted by a jury on the remaining charge that he distributed obscene material to a minor.

Cleared of these charges, Nurek moved to Illinois and began applying for teaching and administrative jobs at schools in and around Chicago. He did not disclose the sexual-abuse and obscenity-distribution charges involved in the Michigan prosecution. He was eventually hired as principal of a school for the developmentally disabled in Chicago and later became principal of a school for emotionally disturbed children in Arlington Heights, Illinois. In 2000 he became principal of the Chicago International Charter School, where Victim B was a student.

Victim B and his mother and siblings were living in a homeless shelter at the time. At some point the family moved to Elgin, Illinois, which was too far away for Victim B to commute to the Charter School. To enable her son to continue to attend the Charter School, Victim B's mother signed a document purporting to give Nurek temporary custody of Victim B, and in August 2003, just before the start of his seventh-grade school year, Victim B moved in with Nurek. From then until the March 2004 search, Nurek repeatedly sexually abused Victim B. When federal agents questioned Nurek during the execution of the search warrant, however, he denied ever having molested any children. He also told the agents that the computer they seized was the only one he possessed.

Nurek was arrested and a magistrate judge eventually released him on bond. As a condition of his release, he was prohibited from having any contact with Victim B or Victim B's family. Nurek violated this order on numerous occasions:  He called Victim B's family on the phone, visited them at their home, gave them several thousand dollars, had Victim B's brother over to his house, sent a personal letter to Victim B, and proposed marriage to Victim B's mother. More specifically, Nurek frequently talked to Victim B's family members on the phone and visited with them in person on several occasions. He gave Victim B's brother and mother more than $2000 each. He told Victim B's mother that he loved her and asked her to run away with him and get married so they could be “one big happy family.” In his letter to Victim B, Nurek said he was sorry and that he wanted to be “a good dad to you” and that he loved Victim B “as a good father loves his son.”   Based on these violations of his pretrial release order, Nurek's bond was revoked and he was returned to custody.

While he was still free on bond, however, Nurek contacted Chicago police to report the unexplained presence of drugs at his home. Police responded, spoke to Nurek and his attorney, and received permission to search his garage, where Nurek said he had seen the drugs. Among other discoveries in the garage, the police found a computer hard drive with holes drilled in it, sitting in about six inches of gasoline in a bucket hidden behind some shovels. Nurek told the officers he was trying to destroy tax-return information on the computer. Attempts to retrieve information from the computer were unsuccessful.

Nurek was indicted on seven counts of receiving child pornography and one count of possessing child pornography. A superseding indictment later added two counts of transporting a minor across state lines to engage in sexual conduct. One of these counts involved conduct against Victim B;  Nurek took him from Illinois to Wisconsin for purposes of sexual conduct. Nurek traveled with the other minor victim between Illinois and Michigan for the same purpose. After lengthy pretrial proceedings, Nurek pleaded guilty to a single count of knowingly receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).

In calculating Nurek's advisory sentencing guidelines range, the district judge used the 2006 Guidelines Manual in effect at sentencing rather than the 2003 Guidelines Manual in effect when the offense was committed. The 2006 Guidelines Manual suggested a base offense level for Nurek that was five levels higher than the level suggested under the 2003 Guidelines Manual.   The judge also applied a two-level enhancement for obstruction of justice. See U.S.S.G. § 3C1.1. The presentence report offered two evidentiary bases for this enhancement: Nurek's destruction of the computer hard drive found in the bucket of gasoline in his garage after his release on bond, and his repeated contacts with Victim B and his family in violation of the terms of his pretrial release order.

The district judge rejected the first basis, characterizing Nurek's successful obliteration of his computer hard drive as raising only a “mere suspicion.” The judge accepted the second basis, however, finding that Nurek had attempted to influence Victim B and exert control over Victim B's family through his continuous contacts with them in violation of his pretrial release order.   Finally, over the government's objection, the judge applied a two-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). The government refused to request an additional one-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(b), and the district court noted that it had no discretion to grant Nurek the third point without a motion by the government.

The resulting advisory guidelines range was 292-365 months, well above the statutory maximum of 240 months, so the range defaulted to the statutory maximum. See U.S.S.G. § 5G1.1(a). The district court considered Nurek's arguments in mitigation, including his claim, based on an expert opinion from a clinical psychiatrist, that he was a good candidate for a shorter sentence and sex-offender treatment. The judge thought Nurek's conduct was too serious and his risk of recidivism too great to justify a shorter sentence and imposed the maximum sentence of 240 months.

II. Discussion

Nurek challenges his sentence on four grounds:  (1) he claims the district court erred by applying the two level obstruction-of-justice enhancement under § 3C1.1;  (2) he claims he should have received an additional one-point reduction for acceptance of responsibility under § 3E1.1(b) even though the government did not move for the reduction;  (3) he claims the district court violated the Ex Post Facto Clause by using the 2006 Guidelines Manual rather than the 2003 Guidelines Manual;  and (4) he claims that 240 months is an unreasonable sentence.   None of these arguments has merit.

A. Obstruction of Justice

 Nurek argues that the district judge erred by imposing the two-level enhancement for obstruction of justice under § 3C1.1 of the guidelines.   That provision states that a judge may increase the defendant's offense level by two levels “[i]f (A) the defendant willfully obstructed or impeded ․ the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct;  or (ii) a closely related offense.”  U.S.S.G. § 3C1.1.   Here, the district judge imposed the enhancement because Nurek violated the terms of his pretrial release order by repeatedly contacting Victim B and his family in an attempt to maintain control over the family and otherwise influence their willingness to cooperate with the prosecution.1

Nurek argues first that the facts do not support a finding of obstruction of justice.   He cites United States v. Scott for the proposition that obstruction under § 3C1.1 only occurs when the defendant makes it “more costly or otherwise more difficult for the government to prosecute its case.”  405 F.3d 615, 618 (7th Cir.2005).   Nurek contends that he did not threaten or intimidate Victim B and his family, but instead had only “friendly” conversations and other innocent communications with them.   He argues that these contacts were intended to maintain his “close relationship” with them and persuade them not to initiate a civil lawsuit against him, not to make it more difficult for the government to prosecute the child-pornography charges.

We are not persuaded.   Under the circumstances, no reasonable judge would be.   Nurek's benign interpretation of the facts is not remotely plausible.   Viewed in context and in light of Nurek's history, these particular bond violations can only be understood as insidious attempts at victim manipulation.   This kind of behavior by a man in Nurek's position cannot possibly be passed off as mere “friendly” concern and disinterested generosity.   Nurek was facing multiple felony child-pornography counts and the likelihood of spending the rest of his life in prison if convicted;  the possibility of a civil suit was the least of his problems.   Nurek's letter to Victim B is particularly revealing;  in it Nurek tells Victim B that he loves him, misses him, and wants to take care of him and be “a good dad” to him.   Then he closes the letter with a caution:  “Don't say anything to anyone about this letter-this letter is for you!   Don't slip, the agents are just waiting for something like this.”

The district court was quite right to conclude that this conduct was intended to hamper the prosecution.   Victim B had seen Nurek viewing and masturbating to child pornography multiple times and therefore was an eyewitness to the child-pornography offenses.   Moreover, Nurek's molestation of Victim B was as yet unknown (though suspected) and, unlike the Michigan victims, was recent and more readily provable provided Victim B felt safe enough to cooperate with the prosecution.   Indeed, Nurek's cynical manipulation of Victim B and his family had the desired effect of inhibiting the prosecution;  it was only after Nurek's bond was revoked that Victim B revealed Nurek's past sexual abuse.   The superseding indictment subsequently added the charges of transporting a minor across state lines to engage in sexual conduct.   On the totality of these facts, it would have been error not to apply the obstruction enhancement.

 Nurek also argues that the district court did not make adequate findings on Nurek's specific intent to obstruct justice.   For an obstruction-of-justice enhancement to apply, the government must establish by a preponderance of the evidence that the defendant had the specific intent to obstruct justice.  United States v. Dale, 498 F.3d 604, 609 (7th Cir.2007).   This intent requirement stems from language in the guideline requiring that the defendant “willfully obstruct[ ] ․ or attempt[ ] to obstruct” justice.   U.S.S.G. § 3C1.1 (emphasis added).   However, the sentencing judge is not required to parrot back the “willful” language of the guideline when deciding that an obstruction enhancement is appropriate.   Rather, we have suggested that the enhancement is appropriate as long as the district court “includes implicitly a finding that [the defendant] intended to obstruct justice.”   Dale, 498 F.3d at 609.

Here, the district court's findings, while somewhat unclear, were sufficient to support the obstruction enhancement.   The court acknowledged the possibility that Nurek might have had mixed motives for contacting Victim B's family but held that “one of the reasons that you had a dialogue with them was that you hoped that that would ameliorate the consequences of the arrest and charges.”   The judge said:  “I believe that ․ one of the motives was to promote a positive relationship, insofar as it was possible, with [Victim B's family]-and that was at a time when you hadn't pled guilty and the legal state of things was uncertain-and so I believe that obstruction of justice for that is an appropriate enhancement.”

Nurek maintains that the court's only explicit “finding” was that Nurek was trying to “promote a positive relationship” with the family-not enough, he says, to support a finding of intent to obstruct.   He also notes that the judge said he was making “a very subjective judgment” and “could be wrong” and “might be wrong.”   It is not clear what moved the court to add this gratuitous postscript, but we see it as just that-a wholly gratuitous statement or at most a commentary on the inherent difficulty of evaluating motive or intent.   Either way, it does not undermine the court's ruling.   When read in context and in their entirety, the court's remarks on the application of the obstruction enhancement contain an implicit finding that Nurek intended to obstruct the prosecution.   That is enough to sustain the two-level enhancement.

B. Acceptance of Responsibility

 The effect of the obstruction enhancement was wiped out, however, when the district court applied a two-level reduction in Nurek's offense level for acceptance of responsibility.   See U.S.S.G. § 3E1.1(a).   The judge thought the acceptance-of-responsibility reduction was warranted because Nurek did not take any positions inconsistent with the government's allegations and agreed to pay restitution to the victims of his sexual abuse.   Nurek also argued for the third acceptance-of-responsibility point under subsection (b) of § 3E1.1. The government objected;  it was opposed to any acceptance of responsibility reduction, and having lost that battle, refused to move for the extra point under § 3E1.1(b).  The judge said he could not consider the third-point reduction in the absence of a motion from the government.   This was manifestly correct.   The guideline specifically states that an additional one-level reduction for acceptance of responsibility is possible only if the government requests it;  an additional one-point reduction is awarded “upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.”  U.S.S.G. § 3E1.1(b).

Here, the government refused to move for the additional reduction because Nurek only pleaded guilty to one of ten counts, he frivolously contested the obstruction-of-justice enhancement, he showed no real remorse for his actions, and his “offer” to make restitution to the victims was simply an agreement that his $500,000 bond would be forfeited to the victims rather than the court.   Because the government did not move for the additional reduction, the district court properly rejected Nurek's argument for a third acceptance-of-responsibility point.  U.S.S.G. § 3E1.1 cmt. n. 6 (“[A]n adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.”).

 Nurek argues on appeal that the government has only limited discretion to withhold a motion for a third-level reduction under § 3E1.1(b).  Not true.   We have recently reiterated that although subsection (a) of the acceptance-of-responsibility guideline “confers an entitlement on the defendant [ ] if he satisfies the criteria in the subsection,” subsection (b) “confers an entitlement on the government.”  United States v. Deberry, 576 F.3d 708, 710, 2009 WL 2432481, at *1 (7th Cir. Aug. 11, 2009).   Subsection (b) of § 3E1.1 is thus “a license for prosecutorial discretion.”   Id. If the government “wants to give the defendant additional credit for acceptance of responsibility ․ and can satisfy the criteria in the subsection, it can file a motion and the defendant will get the additional one-level reduction in his offense level.” Id. The prosecutor's discretion is therefore quite broad, though not limitless;  the government “may not base a refusal to file a motion under section 3E1.1(b) on an invidious ground, or ․ on a ground unrelated to a legitimate governmental objective.” Id. at *2.

Here, the government's reasons for refusing to file a § 3E1.1(b) motion were hardly invidious or unrelated to a legitimate governmental objective.   To the contrary, the government's arguments would have fully supported a decision to deny the two-point reduction under subsection (a) of the guideline, had the district court so ruled.   Nurek did frivolously contest the obstruction-of-justice enhancement, for the reasons we have already noted.   He pleaded guilty to just one of ten counts and demonstrated little real insight into or remorse for the depravity of his conduct. His “agreement” to make restitution cost him nothing;  his bond would have been subject to forfeiture anyway based on his violations of the terms of his pretrial release order.   The government acted well within its discretion in withholding a motion for the additional one-point reduction for acceptance of responsibility under § 3E1.1(b).

C. Use of 2006 Guidelines Manual

Nurek next argues that the district court's use of the 2006 Guidelines Manual rather than the 2003 Guidelines Manual violated the Ex Post Facto Clause of the United States Constitution.   Nurek's argument is squarely foreclosed by United States v. Demaree, 459 F.3d 791 (7th Cir.2006).  Demaree held that application of the guidelines manual in effect at sentencing rather than the one in force at the time of the defendant's crime does not violate the Ex Post Facto Clause, even if the current manual suggests a harsher sentence for the defendant.   Nurek invites us to reconsider Demaree.   We decline the invitation.

 A law violates the Ex Post Facto Clause if it creates a substantial risk of an increased penalty after a crime has been committed.   See Garner v. Jones, 529 U.S. 244, 255-56, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000).   We held in Demaree that a change in the guidelines does not violate the Ex Post Facto Clause because after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the guidelines are purely advisory.   We held that “the ex post facto clause should apply only to laws and regulations that bind rather than advise.”  Demaree, 459 F.3d at 795.   After we heard oral argument in this case, the D.C. Circuit rejected our view in Demaree and held instead that “[i]t is enough that using the 2006 Guidelines created a substantial risk that [the defendant's] sentence was more severe.”  United States v. Turner, 548 F.3d 1094, 1100 (D.C.Cir.2008).   The D.C. Circuit focused on the practical application of the guidelines, noting that trial judges usually sentence within the guidelines “in order to avoid the increased scrutiny [on appeal] that is likely to result from imposing a sentence outside the Guidelines.”  Id. at 1099.

We anticipated this argument in Demaree and rejected it, noting that the presumption of reasonableness that adheres to a within-guidelines sentence only applies on appeal.  Demaree, 459 F.3d at 794.   At sentencing, a district judge “is not required-or indeed permitted-to ‘presume’ that a sentence within the guidelines range is the correct sentence ․ [H]is freedom to impose a reasonable sentence outside the range is unfettered.”   Id. at 794-95 (citation omitted).   The Supreme Court reiterated this point in both Gall and Rita. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007) (“In [calculating the sentence, the judge] may not presume that the Guidelines range is reasonable.”);  Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) ( “[T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.”).   Given the breadth of the district court's Booker sentencing discretion and the requirement that judges independently evaluate the sentencing factors specified in 18 U.S.C. § 3553(a), we think our conclusion in Demaree remains sound.

D. Reasonableness of the Sentence

 Finally, Nurek argues that his 240-month sentence is unreasonable in light of § 3553(a)'s sentencing factors.   Specifically, he contends that the district court gave insufficient weight to his primary argument, which was premised on the opinion of his expert, Dr. Richard Abrams, that a sex-offender treatment program would “cure him and prevent recidivism” and therefore a lengthy period of incarceration was unnecessary.   The record refutes this claim;  the district judge evaluated Dr. Abrams's testimony and indeed, questioned the expert himself for several minutes.   In arriving at the 240-month sentence, the judge was skeptical of the possibility that Nurek could be successfully treated, although he agreed to recommend that he receive sex-offender treatment while in prison.   The judge ultimately concluded that incapacitation was necessary based on the seriousness of Nurek's offense conduct, his history, and the high risk of recidivism:  “[T]he one thing I am sure of in this is that the best way to protect the public is for Mr. Nurek not to be free for as long as possible.”

Nurek also faults the district court for not giving sufficient weight to his age (59 years old) and his physical and mental-health problems (including asthma, high blood pressure, and a history of depression and alcoholism, among other ailments).   Although the judge did not discuss each of these factors individually, he did, in the context of discussing Dr. Abrams's opinion, refer to Nurek's psychological background and the improbability of successful rehabilitation.   Nurek's physical ailments and age are not significant mitigating factors in the context of this case, and as such, the district court need not have separately addressed them.  United States. v. Martinez, 520 F.3d 749, 752-53 (7th Cir.2008) (insubstantial sentencing arguments may be rejected without discussion);  United States v. Shannon, 518 F.3d 494, 496 (7th Cir.2008) (“The court need not address every § 3553(a) factor in checklist fashion, explicitly articulating its conclusions regarding each one.”).

The district court gave specific and appropriate consideration to the relevant § 3553(a) factors and Nurek's primary sentencing argument, which focused on Dr. Abrams's opinion about his amenability to treatment.   The 240-month sentence-the default guidelines range under § 5G1.1(a)-is presumed reasonable on appeal and reviewed deferentially.  Rita, 127 S.Ct. at 2465;  United States v. Haskins, 511 F.3d 688, 695 (7th Cir.2007);  United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005).   Nurek has not rebutted the presumption or convinced us that the district court abused its discretion.   Under the extremely aggravated circumstances of this case, the 240-month sentence was a reasonable one.

Affirmed

FOOTNOTES

1.  Because we agree with the district court's application of the obstruction-of-justice enhancement based on Nurek's contact with Victim B and his family, we need not address the alternative ground for the enhancement-that is, Nurek's destruction of his computer hard drive while out on bond.

SYKES, Circuit Judge.

THE UNITED STATES SUPREME COURT UPHELD THE SEVENTH CIRCUIT RULING ON SENTENCING BY DENYING REVIEW IN AUGUST 2010.

CHICAGO TRIBUNE STORY ON NUREK ARREST (2006)

Principal admits porn count. Thousands of photos found on computer. December 22, 2006|By Rudolph Bush, Tribune staff reporter

After nearly two years of sitting in a federal jail, a former Chicago charter school principal admitted in federal court Thursday that he downloaded child pornography on his home computer.

Joseph Nurek, who served four years as a principal at Chicago International Charter School, was a man with a voracious appetite for child pornography and a dangerous attraction to young boys, prosecutors alleged.

Nurek, 58, was arrested in March 2004 after immigration and customs officials searched his home in the 6800 block of West Addison Street. [Nurek's address was 6811 W. Addison].

They discovered 4,000 photographs and 1,400 videos of child pornography, prosecutors said. Nurek also had one hard cover and one soft cover periodical containing images of nude children, according to a criminal complaint.

In October 2004, prosecutors added a charge against Nurek, alleging that in 1991, he took a child from Ferndale, Mich., to Villa Park with the intent of sexually abusing the child.

On Thursday, he pleaded guilty only to one charge of downloading onto his computer an image of two prepubescent boys engaged in a sex act.

He admitted he bought the image using his credit card.

Because Nurek pleaded guilty without reaching an agreement with prosecutors, he could still face trial on seven additional child pornography counts and one count of taking a child across state lines to engage in sex.

Assistant U.S. Atty. Julie Ruder said prosecutors would wait until Nurek is sentenced in April before deciding whether to go forward on the other charges.

He faces a minimum of 5 years in prison.

Nurek said little during Thursday's brief hearing.

He looked disheveled, wearing an oversized orange prison jumpsuit, his black hair unkempt and stringy.

But he answered clearly and loudly "yes" when U.S. District Judge Wayne Andersen asked if he committed the crime.

"I think he fully and forthrightly acknowledged his culpability. We hope Judge Andersen will impose a fair sentence after all the evidence is in," said his attorney, Michael Robbins.

Nurek's history with child sex cases dates to 1991, when a Michigan jury acquitted him of showing pornography to a 13-year-old boy.

In 2004, a 25-year-old man came forward to accuse Nurek of abusing him as a teenager.

Nurek's attorney argued that the alleged victim had never before made allegations and had remained close to Nurek, visiting his home frequently and borrowing his computer.

At the time of Nurek's arrest in 2004, a 13-year-old student from Chicago International was living with him.

The school offers classes from kindergarten through 7th grade.

The child's mother was intermittently homeless, and Nurek took the boy in so he could continue his education, Nurek's attorneys argued.



Comments:

November 23, 2012 at 6:35 AM

By: Michael Forbes

Nurek was my Principal.

I used to run into him in his car on my way to school while my mom was driving. I would rush to school so that I could open the side door for him.

He used to give me rides home and give me long hugs.

When I heard about him... I freaked.

Add your own comment (all fields are necessary)

Substance readers:

You must give your first name and last name under "Name" when you post a comment at substancenews.net. We are not operating a blog and do not allow anonymous or pseudonymous comments. Our readers deserve to know who is commenting, just as they deserve to know the source of our news reports and analysis.

Please respect this, and also provide us with an accurate e-mail address.

Thank you,

The Editors of Substance

Your Name

Your Email

What's your comment about?

Your Comment

Please answer this to prove you're not a robot:

3 + 4 =