In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3568

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH T. NUREK,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 333—Wayne R. Andersen, Judge.

ARGUED SEPTEMBER 3, 2008—DECIDED AUGUST 21, 2009

Before EASTERBROOK, Chief Judge, and ROVNER and

SYKES, Circuit Judges.

SYKES, Circuit Judge. 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
2 No. 07-3568

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 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
No. 07-3568 3

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
4 No. 07-3568

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 com-
No. 07-3568 5

puter 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
6 No. 07-3568

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 sexoffender 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-
No. 07-3568 7

Because we agree with the district court’s application of the 1

obstruction-of-justice enhancement based on Nurek’s contact

(continued...)

level obstruction-of-justice enhancement under § 3C1.1;

(2) he claims he should have received an additional onepoint 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
8 No. 07-3568

(...continued) 1

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.

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 childpornography 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
No. 07-3568 9

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
10 No. 07-3568

(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
No. 07-3568 11

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-ofresponsibility 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
12 No. 07-3568

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 obstructionof-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-ofresponsibility guideline “confers an entitlement on the

defendant[] if he satisfies the criteria in the subsection,”
No. 07-3568 13

subsection (b) “confers an entitlement on the government.”

United States v. Deberry, No. 09-1111, 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-ofjustice 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).
14 No. 07-3568

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

(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 (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
No. 07-3568 15

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, 128 S. Ct. 586,

597 (2007) (“In [calculating the sentence, the judge] may

not presume that the Guidelines range is reasonable.”);

Rita v. United States, 127 S. Ct. 2456, 2465 (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,
16 No. 07-3568

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)
No. 07-3568 17

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

8-21-09