UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, 

Plaintiff,

v. Case No. 09-cr-20382

Hon. Steven J. Murphy, III

WILLIAM BORGIDA,

Defendant.

__________________________________/

DEFENDANT’S SENTENCING MEMORANDUM

It is by now a commonplace of post-Booker sentencing jurisprudence that in weighing the

sentencing factors set forth in 18 U.S.C. § 3553(a), a sentencing judge “must make an

individualized assessment based on the facts presented” by the case, and although a correct

Guidelines calculation of the applicable “should be the starting point and the initial benchmark,” the

court “may not presume that the Guidelines range is reasonable.”Gall v. United States, 522 U.S. 38,

50 (2007). In the case at bar, the Guidelines as calculated by the parties call for a sentence of

between 57 and 71 months, and by the Probation Department, between 70 and 87 months, but the

dominant feature of the sentencing landscape against which the Court may exercise its discretion

is defined by the mandatory minimum sentence of 60 months set by the statute to which defendant

pled guilty.

This is especially true because the history of the applicable Guideline provision, § 2G2.2

makes clear that the offense levels it defines - including the application of the enhancements applied

in the case at bar - were set with the intent that they conform to the statutory mandatory minimum.

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See, United States Sentencing Commission, The History of the Child Pornography Guidelines, 44-

48 (2009) http://www.ussc.gov/general/20091030_History_Child_Pornography_Guidelines.pdf,

as viewed January 4, 2010. This circumstance, of course, only serves to magnify what is always

true of the Guidelines: that they present an essentially one-dimensional picture of the totality of the

circumstances upon which this Court’s sentencing decision must ultimately depend, and one,

because they focus almost exclusively on the nature of the offense conduct involved, tend inevitably

to skew toward severity. On the other hand, both common sense and the sentencing statute - if not

the Guidelines - dictate that an offender be sentenced on the basis of not just his transgression, but

on the entirety of his life.

This being said, “the nature and circumstances of the offense and the history and

characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), are inexorably intertwined, and the

Presentence Investigation Report (PSI) reflects aspects of both which are (perhaps unsurprisingly,

in a case involving child pornography) disturbing, and which should be addressed at the outset of

this discussion.

First, as Paragraphs 9 and 10 of the PSI report, at the time of his arrest on the instant charges,

Mr. Borgida was also in possession of maps of Singapore and Thailand, which are known as “sex

tourism” destinations, and which Mr. Borgida acknowledged having traveled, as well as “several

sex toys, women’s lingerie, two bags of candy, children’s toys, stuffed animals, crayons, and a

coloring book,” as well as photographer’s “Model Release” forms. Second, Paragraph 33 reflects

a June, 1981 incident in which a sixteen year old student of Mr. Borgida’s at the Trumansburg, New

York, high school where he was then employed, reported that during a tennis lesson (Mr. Borgida

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was a math teacher and tennis coach at the school), he “began tickling her, grabbing her around the

waist, and attempted to kiss her,” that he “fondled her breasts, placed his hand in her pants, and

touched her genitals,” and that he warned her not to tell anyone about the incident “or he would have

to ‘arrange her cute little nose.’” As the PSI reports, this accusation resulted in criminal charges,

which were ultimately dismissed. 

These circumstances must, of course, be read in light of Mr. Borgida’s explanations. Thus,

as he stated to the Customs agents at the time of his arrest, and in the version of the offense found

at Paragraph 15 of the PSI, some of the items which he had with him were used as photographic

props - for adult female models whom he hired to pose for him, and whose age he verified when he

thought it questionable - and some (such as the children’s toys, crayons, and coloring book) were

intended as gifts for his dance partner’s daughter. This latter statement is verified by the letter of

Laura Malloy, his dance partner, which may be found as the first submission under Tab Four, and

which explains as follows:

I have a 3 year old daughter, Sadie, and I am a full-time mother at home. Bill and 

I have often worked together at my house or his while Sadie is with us, resting or

playing nearby. That has been the case from the time she was several months old. He

has always been appropriate in every way, and she is always happy to see him. Bill

has brought her small souvenirs or toys back after long travels on several occasions.

. . . I have told Bill how happy I am that she loves to draw and color, as her Daddy

is a talented artist. Bill mentioned specifically that he had found a cute coloring book

for her, along with some other little things to bring back on his next trip home. Bill

and I had this conversation prior to an apparent search of his belongings, when some

of these items were found. I am fully confident that these were intended for Sadie.

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Mr. Borgida’s travels to Southeast Asia, which he freely acknowledged to the arresting

agents, were undertaken in connection with his activities teaching dance, and because of his lifelong

interest in Buddhism.

As to the 1981 incident, while Mr. Borgida recognizes the impropriety of his actions with

a 16-year old student, and the coercion inherent on any such encounter, he denies - and denied to

the investigating authorities in the first instance - that he physically forced himself on her, or

threatened her in any way to remain silent.

Nonetheless, the writers would be naive to ignore the suspicion that these circumstances

may give rise to - that in addition to an unhealthy interest in viewing images of children, and

therefore feeding an industry that inevitably thrives on their abuse, Mr. Borgida may have a history

of, and therefore pose a risk of, personal involvement in the abuse of minors. While this accusation

is not squarely made in this case, of course, such considerations are certainly within the range of

factors which may bear upon the Court’s evaluation of “the nature and circumstances of the offense

and the history and characteristics of the defendant,” and, in fairness to all concerned, must be

squarely addressed. Mr. Borgida, and undersigned counsel, have taken a number of steps in order

to attempt to do so. 

First, under Tab One, is the report of certified polygraph examiner Christopher Lanfear. Mr.

Lanfear, a 25 year veteran of the Michigan State Police, who retired from that agency as a Detective

Lieutenant, has a long and distinguished history in law enforcement which is not limited to

polygraph work - although he has administered more than 3700 examinations for more than 200

different agencies, state and federal. In addition to his private practice, he currently serves as staff

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 Interestingly, Dr. Ferrara opines that such a low risk of participation in other criminal

sexual activity “is consistent with research regarding offenders who use child pornography.” This

seems to be the consensus view in the psychiatric/psychological research community. See, e.g., J.

Endrass, F. Urbaniok, L. C. Hammermeister, C. Benz, T. Elbert, A. Laubacher, and A. Rossegger,

The Consumption of Internet Child Pornography and Violent and Sex Offending (BMC Psychiatry

2009), http://www.biomedcentral.com/1471-244X/9/43, as viewed January 5, 2010.

5

polygraph examiner for the Oakland County Sheriff Department and the Troy Police Department.

His skill, experience, and integrity are unquestionable. A copy of his curriculum vitae follows his

report under Tab One. As the report states, Mr. Lanfear’s examination of the defendant verified that

he was being truthful when he denied ever having sexual contact with “any underage person,” other

than the 28 year old incident with his sixteen-year old student, or ever having taken any unclothed

photographs of “any under age person,” with the exception of a single incident in which a seventeen

year old model had presented him with false identification showing her to be of age.

Under Tab Two are a report of a forensic psychological evaluation of Mr. Borgida, and the

CV of the evaluator, Matthew L. Ferrara, Ph.D., a licensed psychologist and sex offender therapist

in Austin, Texas. The primary thrust of Dr. Ferrara’s inquiry was in the nature of a “risk

assessment,” and as the report explains in some detail, his conclusions are that Mr. Borgida presents

“a low risk for future sex crimes,”1

 and that his prognosis for successful psychological treatment is

good, based on his “demonstrated the ability to hold himself accountable for his conduct,” his “good

empathy for others,” and his motivation “to participate in treatment and make changes in himself.”

This latter observation is borne out by the report, attached under Tab Three, of Shelley

Graham, Ph.D., a licensed professional counselor and a licensed sex offender treatment provider

in the State of Texas, who began seeing Mr. Borgida on a therapeutic basis after his arrest in this

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 To comply with the redaction requirements of F.R.Cr.P. 49.1, the electronically filed

version of these letters has eliminated all but the city and state in the home addresses of the

correspondents. The originals of the letters, which are being submitted with the Judge’s copy of this

memorandum, have not been so redacted, and counsel will send an unredacted set of the letters via

e-mail to government counsel and the probation department.

6

case, “to assist him in dealing with his stress and anxiety over his court/legal issues, and to begin

work on sexual behaviors - specifically interest in child pornography.” She reports that he “has

been responsive and motivated for the counseling process,” and she describes him as “basically a

pro-social individual, who could be expected to learn from his past behaviors and resulting

consequences, and whose “prognosis for benefitting from a treatment program appears good.”

The experience of living in this world teaches us that human beings, and human lives, are

usually multifaceted, that a person cannot be fairly judged on the basis of only one aspect of his or

her life, and that looking at a person’s entire history is as good a way as any of taking his measure.

Attached under Tab Four a number of letters from Mr. Borgida’s family, friends, and associates,

whose experience of him will hopefully will assist the Court in making a fuller, more rounded

appraisal of him, the life he has led, and the life he is likely to lead in the future.2

The people who have opted to speak for Bill Borgida come from a variety of walks of life,

but many of them know him through, and share his passion for, dance - specifically, Swing Dancing,

and the Lindy Hop, of which he is a preeminent teacher. Much of what they have to say about him

concerns his conduct in that role. Thus, echoing a theme which is repeated throughout the letters,

Karen “Casey” Carr, who has a background in social work in psychotherapy, “with a specialty

working with children and adolescents,” and who has served as a Probation Officer and Director of

a Halfway House, reports that after traveling with Mr. Borgida as part of dance troupe for “many

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years,” she “was always impressed with Bill's kindness, thoughtfulness and ability to find the good

in everyone . . . one of those people who ‘would not hurt a fly,’” that over the years of his work with

dance students, “[n]ever once was there any indication of impropriety,” and that since his arrest, “the

pain he has already suffered and the countless hours of personal deliberation he has engaged in has

been life changing.” Others, of course, express similar thoughts:

[T]he bigger picture clearly reveals someone who consistently conducts himself with

propriety. We who know him well. know that while enriching the lives of countless

friends and students. Bill has always acted with integrity and heart.

Susan A. Kramer

I saw only a professional, warm individual who loved his craft and the respect and

admiration that his pupils gave him. At no time did I see any behaviors that would

be considered inappropriate. . . . Bill has always been one of my favorite people due

to his kindness, willingness to help others, and positive attitude.

Kimberly Hardi (former elementary school teacher)

To give you an example of the type of man Bill is, when we both resided Ithaca, New

York, every year during the holidays, Bill would open his home and his heart and

extend an invitation to all in the dance community whose families lived elsewhere

and who would otherwise be alone. All were welcome. No one was excluded.

Kathe Kauffman

I would characterize Mr. Borgida as talented, gracious, highly intelligent, creative

and friendly. I have never seen him lose his temper or intentionally cause anyone

distress. I have frequently observed Bill working with children and young adults and

have never witnessed nor been told of impropriety of any sort. Bill consistently

observed proper etiquette and I did receive very favorable feedback from both the

children and their parents.

I well understand the nature of the very serious charges that have been brought

against Mr. Borgida and his full admission of responsibility. I have on several

occasions worked professionally with individuals who have been convicted of these

and considerably more egregious, sexually oriented crimes. Based upon my training,

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experience and personal knowledge of this individual, I sincerely believe that Mr.

Borgida has the integrity, intelligence, sensitivity and responsibility required to learn

from this experience and to change his behavior accordingly and permanently.

Howard Schler, Certified Rehabilitation Counselor. New York State Licensed Mental Health

Counselor. and Chairman of the Seneca County (NY) Community Service Board

Bill treated everyone the same: with respect, professionalism, and a sincere wish to

help them learn to dance. . . .My experience with Bill is that, more than anything

else, he loved to dance and wanted to spread the joy of dancing to as many people

as he could. . . . Bill has helped many, many people learn to dance, and to each of

them he has given a gift.

Bill has expressed to me his remorse for what he has done. He told me he had

assumed he wasn’t hurting anyone since his activities were “behind closed doors.”

Now he sees how his actions were part of a larger problem, and he is sorry and

ashamed for having contributed to that.

Diana Leigh

Bill has contributed endless hours, much of it uncompensated, to organizing and

supporting our local dance community, putting on benefits and special events,

arranging for workshops and regular dance venues. He has been very dedicated to

promoting quality instruction, music and social dance and encouraging people of all

ages to learn to enjoy swing dance and music. He has been a tireless supporter of the

often poorly paid swing musicians in town and around the country. His reputation

extends internationally to countries such as Japan, Sweden, France, New Zealand,

and England.

Cindy Overstreet, M.S.W.

Bill knows that he participated in harm by supplying a demand. His remorse is

palpable and heartbreaking. He is a very good man who did something regrettable.

To know Bill is to know someone who cares about people deeply, who has perfected

his professional craft from a concern to better the lives of his students.

Andrew Poles

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During the years that I taught swing dance with Bill, our classes had mostly young

adults, adults, and some teenagers. Bill was a friendly yet professional instructor who

interacted with respect and appropriate physical boundaries with his students. . . . 

I have grown into a happier person because I have known him and learned from him.

Katherine Isacks

Bill is a and valuable part of the lives he touches, both close to home and to dancers

around the country and the world. He is a pillar of the dance community.

Frances G. Courtney

Over the years, I have frequently seen Bill interact with people of all ages, both on

and off the dance floor. He has always dealt with others, particularly women and

girls, in an appropriate and respectful manner. . . .

He has a gift for recognizing the potential in others and helping them to develop it.

Overall, I believe that Bill has the character and integrity to make the best of this

present difficult situation. I'm sure he will examine himself and his past behavior and

make changes for the better where they are needed. He has a good mind and a

generous heart; he would not knowingly hurt others. 

Gretchen Herrmann, Ph.D., former Woman’s Studies teacher and coordinator

Bill was forthright in admitting his personal responsibility -and in fact, his disgust

in himself. He understands that by looking at porn he has helped to create a market

for it and that he has essentially encouraged the makers of porn and in this case child

pornography. Bill finds that idea -that image of himself- to be abhorrent. He told me

very directly that he feels awful -not just for his re-assessment of himself, but for the

effect he has had on others. We discussed this aspect in detail and I believe that Bill's

remorse is genuine and deep. I believe Bill feels revulsion for his part in looking at

porn and helping to create an environment where pornographers can benefit from

abusing kids on any level.

I have never seen Bill acting inappropriately with my students. Bill has maintained

his popularity as a teacher with my students which suggests to me that he did not act

inappropriately when I was not there. I should point out that, at age 48, I do feel

protective of my students most of whom are in college. My wife (who teaches with

me) and I feel an obligation to watch over our students and make sure that they are

safe while we are around. 

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 The “traditional purposes of punishment . . . include retribution, rehabilitation, prevention

of further crimes by the defendant, and deterrence of the defendant and others who might

10

In all the years of being at dances, most of which are attended by younger people,

Bill never said anything inappropriate, sexist or lewd about any of the young women

at the dance. To be honest, I have seen many guys leer at women at the dances; Bill

does not. At dances, people enter a world of make-believe grace and romance.

People make contact, smile and flirt more than in real life: there is every "excuse"

to make 'locker-room' comments -but I have never heard Bill do this. 

Greg Avakian

Pleas made on behalf of defendants in criminal cases often hinge on the claim that their

criminal conduct “stands in stark contrast” to the rest of their lives. As often as not, these claims

are based on no more than a negative - that the defendant has never been in serious trouble before.

This is not the case here: Bill Borgida’s life has been marked by a pattern of admirable, even

exemplary, works and achievements. Both common sense and the sentencing statute - if not the

Guidelines - dictate that an offender be sentenced on the basis of not just his transgression, but on

the entirety of his life. Here, it is fair to say that, fairly viewed, Bill Borgida’s life - “the history and

characteristics of the defendant” - counsels a degree of leniency not recognized by the Guidelines.

The writers recognize, of course, that the Court’s inquiry does not stop here. The

information above focuses on one half of the considerations outlined in subsection (1) of § 3553(a):

“the history 

and characteristics of the defendant.” The command of § 3553(a), of course, is that the Court

“impose a sentence sufficient, but not greater than necessary, to comply with” the traditional aims

of sentencing: retribution, deterrence (both general and specific), incapacitation, and rehabilitation,

as set forth in subsection (2) of the statute.3

 The Court’s appraisal of the “nature and circumstances

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contemplate committing similar crimes. Hobbs v. County of Westchester, 397 F.3d 133, 158 (2d Cir.

2005) (citing 1 W. LaFave, Substantive Criminal Law § 1.5(a)(2d ed.2003).

4

 Specifically, the Sentencing Commission has noted that the offense levels set in § 2G2.2

were devised with the idea that the Base Offense Level of 22, “when combines with several specific

offense characteristics which are expected to apply in almost every case (e.g., use of a computer,

material involving children under 12 years of age, number of images), the mandatory minimum of

11

of the offense,” as also directed in subsection (1), is intrinsically tied up in these considerations -

including, most obviously, the question of what constitutes “just punishment.” Here, defendant

maintains that “just punishment” should not exceed the statutory mandatory minimum sentence of

60 months, notwithstanding that the Guidelines may call for a greater term.

In the ordinary case, as the Supreme Court noted in Rita v. United States, 551 U.S. 338, 350

(2007), “ it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation

of sentences that might achieve § 3553(a)’s objectives.” This assumption, however, is premised

on the underlying notion that the Guidelines in a particular case represent the product of the exercise

of the Sentencing Commission’s well-defined role in the federal sentencing scheme, as the Supreme

Court described it in Kimbrough v. United States, 552 U.S. 85, 108-109: 

Congress established the Commission to formulate and constantly refine national

sentencing standards. See Rita v. United States, 551 U.S. 338, ---- - ----, 127 S.Ct.

2456, 2464-2465, 168 L.Ed.2d 203 (2007). Carrying out its charge, the Commission

fills an important institutional role: It has the capacity courts lack to “base its

determinations on empirical data and national experience, guided by a professional

staff with appropriate expertise.” United States v. Pruitt, 502 F.3d 1154, 1171

(C.A.10 2007) (McConnell, J., concurring); see supra, at 1171.

In contrast, the offense provision applicable in this case, § 2G2.2, has been repeatedly

amended, at times at the specific direction of Congress, and, as previously noted, to conform with

mandatory minimum sentencing provisions4

 which have been enacted over its history, and with the

Case 2:09-cr-20382-SJM-MAR Document 16 Filed 01/08/2010 Page 11 of 18
60 months’ imprisonment will be reached or exceeded in almost every case by the Chapter Two

calculations.” Commentary, “Reason for Amendment,” accompanying Amendment 664. 

12

result that the penalties which it calls for in the mine run case have increased by staggering orders

of magnitude. See, e.g., T. Stabenow, Deconstructing the Myth of Careful Study: A Primer on the

Flawed Progression of the Child Pornography Guidelines, pp. 26-30 (2009),

http://www.fd.org/pdf_lib/child%20porn%20july%20revision.pdf, as viewed January 5, 2010

(illustrating, via sample cases, increases between 567% and 1,750%).

While some of these increases may (or may not) be consistent with evolving public policy

concerning or understanding of child pornography offenses, they clearly do not represent the product

of the kind of work which is expected of the Sentencing Commission, as Chief Judge Bataillon

explained in United States v. Bennett, 2008 WL 2276940, *4 (D. Neb. 2008):

The Guidelines were developed to advance sentencing reform goals of

reducing sentencing disparity, assuring certainty and severity of punishment, and

increasing the rationality and transparence of punishment. See United States

Sentencing Commission, Fifteen Years of Guidelines Sentencing at 11-12

(Nov.2004) (hereinafter, “Fifteen-Year Assessment”). The Sentencing Commission

(“the Commission”) was originally charged by Congress with developing guidelines

to meet the “purposes of punishment” set out in § 3553(a)(2), and to achieve

proportionality, crime control through incapacitation and deterrence, and

rehabilitation. Id. at 12-13. Toward that end, the Commission developed and used

data on past practices and recidivism in formulating the Guidelines. See id. at 14

(noting that the Guidelines are based in part on statistical analyses of pre-Guidelines

sentencing practices); U.S.S.G. § 1A.1, intro. comment., pt. A, ¶ 3; Kimbrough, 552

U.S. at ---, 128 S.Ct. at 567 (regarding drug trafficking guidelines). Based on

sentencing statistics, the Commission established the base offense levels for each

crime, linked to a recommended imprisonment range. Fifteen-Year Assessment at 14.

Accordingly, in many cases, the Guidelines represent a reasonable estimation of a

fair sentencing range. See Kimbrough, 552 U.S. at ---, 128 S.Ct. at 564 (noting that

in the ordinary case, the Commission's recommendation of a sentencing range will

reflect a rough approximation of sentences that might achieve § 3553(a)'s

objectives).

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13

However, for policy reasons, and because statutory mandatory minima

dictated many terms of the Guidelines, the Commission departed from past practices

in setting offense levels for such crimes as fraud, drug trafficking, and child crimes

and sexual offenses. Fifteen-Year Assessment at 15, 72-73; see Kimbrough, 552 U.S.

at -, 128 S.Ct. at 567. Consequently, the Guideline ranges of imprisonment for those

crimes are a less reliable appraisal of a fair sentence. See Kimbrough, 552 U.S. at -,

128 S.Ct. at 574. In cases involving application of Guidelines that do not exemplify

the Commission's exercise of its characteristic institutional role---basing its

determinations on “ ‘empirical data and national experience, guided by a professional

staff with appropriate expertise,’ “-it is not an abuse of discretion for a district court

to conclude when sentencing a particular defendant that application of the guideline

will yield a sentence “greater than necessary” to achieve the purposes set out in §

3553(a). Kimbrough, 552 U.S. at ---, 128 S.Ct. at 574-75 (quoting United States v.

Pruitt, 502 F.3d 1154, 1171 (10th Cir.2007) (McConnell, J., concurring)).

Reprising this theme in United States v. Baird, 580 F. Supp.2d 889, 894-892 (D. Neb. 2008),

he explained:

The court notes that the Guidelines for child exploitation offenses, like the

drug-trafficking Guidelines, were not developed under the empirical approach, but

were promulgated, for the most part, in response to statutory directives. See U.S.S.G.

App. C, Amends. 537 & 538 (Nov. 1, 1996), 592 (Nov. 1, 2000), 615 (Nov. 1, 2001),

651 (Oct. 27, 2003), 664 (Nov. 1, 2006). The Commission itself acknowledges that

“[t]he frequent mandatory minimum legislation and specific directives to the

Commission to amend the Guidelines make it difficult to gauge the effectiveness of

any particular policy change, or to disentangle the influences of the Commission

from those of Congress.” Fifteen-Year Assessment at 73. Because the Guidelines do

not reflect the Commission's unique institutional strengths, the court affords them

less deference than it would to empirically-grounded guidelines.

Other district judges have echoed these observations. Thus, for example, in United States

v. Shipley, 560 F. Supp.2d 739 744 (S.D. Iowa 2008) Chief Judge Pratt wrote:

As Chief Judge Bataillon noted in United States v. Baird, No. 8:07CR204,

2008 WL 151258, at *7 (D.Neb. Jan. 11, 2008), the guidelines for child exploitation

offenses were not developed using an empirical approach by the Sentencing

Commission, but rather were mainly promulgated in response to statutory directives.

Specifically, the Protect Act directly amended guideline 2G2.2 by amending the

guideline enhancements for specific offense characteristics. These modifications do

Case 2:09-cr-20382-SJM-MAR Document 16 Filed 01/08/2010 Page 13 of 18
5

 It also appears, at least based on accounts in the public press, that a number of district court

judges have called upon the Sentencing Commission, in testimony at public hearings, to revise the

14

not appear to be based on any sort of empirical data, and the Court has been unable

to locate any particular rationale for them beyond the general revulsion that is

associated with child exploitation-related offenses. See Skye Phillips, Protect

Downward Departures: Congress and Executive's Intrusion Into Judicial

Independence, 12 J.L. & Pol'y 947, 967-84 (2004) (discussing the history of the

guideline modifications made in the Protect Act and the fact that the changes were

made without notifying or consulting the Sentencing Commission); see also United

States v. Detwiler, 338 F.Supp.2d 1166, 1170-71 (D.Or.2004) (discussing the Feeney

Amendment to the Protect Act). Thus, because the guidelines at issue in this case do

not reflect the unique institutional strengths of the Sentencing Commission in that

they are not based on study, empirical research, and data, like Chief Judge Bataillon,

this Court “affords them less deference than it would to empirically-grounded

guidelines.” See also Kimbrough, 128 S.Ct. at 574 (noting that guideline ranges

created where the Commission departed from past practices are a less reliable

appraisal of a fair sentence). As to any argument that the guideline reflects

Congressional intent to punish child sex offenses harshly, a guideline is not a statute.

The statute here provides a broad range of punishment for this crime, and if Congress

does not want the courts to try and sentence individual defendants throughout that

range based on the facts and circumstances of each case, then Congress should

amend the statute, rather than manipulate an advisory guideline and blunt the

effectiveness and reliability of the work of the Sentencing Commission. While the

Court has consulted the advice of the guidelines, the advice in this case is less

reliable than in other cases where the guidelines are based on study and empirical

data.

While not all sentencing decisions are accompanied by reported opinions, it is perhaps

significant to note that according to Sentencing Commission statistics, in 2008, below-Guideline

sentences (downward Booker variances) were imposed more than three times more frequently in

cases involving § 2G2.2 than they were overall, United States Sentencing Commission, Sourcebook

of Federal Sentencing Statistics 2008, Table 28, http://www.ussc.gov/ANNRPT/2008/Table28.pdf,

as viewed January 6, 2010, perhaps reflecting the generally perceived harshness of that provision,

or the kind of understanding illustrated by the decisions quoted above.5

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child pornography Guidelines in the direction of greater leniency. Denver Post, “Federal judges

argue for reduced sentences for child-porn convicts,” November 29, 2009,

http://www.denverpost.com/news/ci_13887009, as viewed January 6, 2010 (“From New York to

Chicago, and recently in Denver, federal judges have testified before the commission, which sets

federal punishments, that the current sentencing structure for possessing and viewing child

pornography is too severe,” quoting, in part, District Judges John L. Kane (D. Co.) and Robin J.

Cauthron (D. Ok.)).

15

It is to be noted that the Guideline enhancements found in this case are not unusual, and do

not suggest any significant aggravation. Indeed, as the Sentencing Commission noted in its History

of the Child Pornography Guidelines, supra, at 46, a majority of offenders sentenced under §2G2.2

are “subject to specific offense characteristics that increased their offense level. Specifically, the

overwhelming majority of these offenders received a 2-level enhancement for use of a computer

(89.4%) and a 2-level enhancement for material involving a child under 12 (91.4%).” See also,

Commentary accompanying Amendment 664 set forth in footnote 4, supra.

At the same time, there is much about Bill Borgida that counsels a lesser degree of

punishment, such as his history of generosity, caring, and good works, his deeply felt remorse and

understanding of the nature of his wrongdoing, and his demonstrated desire, and ability, to change.

similar considerations led to below-Guideline sentences in United States v. Baird, supra, at 895

(downward variance based on fact that defendant has “demonstrated remorse, . . . a low potential

for recidivism and appears to appreciate the seriousness of his offense. In this connection, the court

stresses the importance of opinions of the medical professionals who have examined Baird and have

determined that he is not likely to reoffend and is not a predator”), and United States v. Shipley,

supra, at 733 (“[t]he letters describe an intelligent, patient, and honorable man, always willing to

help others when needed, [and] note the shame the Defendant feels for his crime”).See also, United

Case 2:09-cr-20382-SJM-MAR Document 16 Filed 01/08/2010 Page 15 of 18
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States v. Grossman, 513 F.3d 592, 596-597 (6th Cir. 2008) ( approving variance based on

observations that defendant “is an ‘educated man,’ . . .a promising candidate for rehabilitation . . .

 appreciated the magnitude of his crime and ‘correctly [understood that] the victims in this matter

were really the children who made no choices in this matter, but who were put into’ a terrible

situation.”).

Defendant contends that a sentence at the statutory minium - 60 months - is a more than

ample recognition of the misconduct in the case at bar, especially when measured against the

perspective of his life as a whole. Such a sentence would also, he submits, more than amply meet

the other relevant sentencing considerations.

As for general deterrence - the need to fashion a punishment which will deter the public at

large from taking the same course of action as did the defendant - it seems reasonable to conclude

that even the minimum sentence which the Court might impose would be a significant deterrent to

the kind of errant activity involved in this case. Indeed, it is difficult to imagine that any offender

would think to calibrate his conduct any differently as between such a sentence and one greater.

The same observation would seem to apply in regard to special deterrence - the need to

dissuade the defendant himself from future illegal conduct. And the same may be said, mutatis

mutandis, as to considerations of “incapacitation” - or, in the language of the statute, the need “to

protect the public from further crimes of the defendant” - especially in the light of the professional

opinions and evaluations submitted herewith. And as to rehabilitation, it does not appear likely that

any programs offered by the United States Bureau of Prisons would be of much assistance in

furthering Mr. Borgida’s future professional life.

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The statute also directs the Court to consider “the kinds of sentences available,” “the need

to avoid unwarranted sentencing disparity, ” and “the need for restitution.” Because of the statutory

mandatory minimum prison sentence, the first of these considerations does not seem to loom large

and, as Paragraph 57 of the PSI notes, the last, restitution, does not appear to be an issue in the case.

As to disparity, it is to be noted that the application of mandatory minimum sentences such

as the one in the case at bar inevitably tend to avoid the kind of natural bell-curves which would

result from a less artificial method of weighing behavior. In United States v. Baird, supra, at 896,

one of the reasons Chief Judge Bataillon gave for the downward variance was that it “will ameliorate

the disparity in the treatment of defendants like Baird and those who commit far more serious crimes

of exploitation and abuse.” Such considerations have even greater applicability here, where the

Court’s discretion is so greatly constrained by the statutory mandatory minimum sentence.

For all these reasons, then, the Court should conclude that a sentence of 60 months

incarceration is “sufficient, but not greater than necessary, to comply with the purposes” of

sentencing set forth in 18 U.S.C. § 3553(a).

Respectfully Submitted,

s/ N. C. Deday LaRene 

N.C. DEDAY LARENE (P16420)

LARENE & KRIGER, P.L.C.

645 Griswold Street, Suite 1717

Detroit, Michigan 48226

(313) 967-0100

E-mail: d6644@deday.net

s/James W. Burdick

JAMES W. BURDICK (P11397)

JAMES W. BURDICK, P.C.

1760 S. Telegraph Road, Ste. 300

Bloomfield Hills, MI 48302

(248) 335-5000

E-mail: jwb@jwburdicklaw.com

DATED: January 8, 2010

Case 2:09-cr-20382-SJM-MAR Document 16 Filed 01/08/2010 Page 17 of 18
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CERTIFICATE OF SERVICE

I hereby certify that on January 8, 2010, I electronically filed the foregoing paper with the

Clerk of the Court using the ECF system, which will send notification of such filing to the

following:

Erin S. Shaw

U.S. Attorney’s Office 

211 W. Fort Street 

Suite 2001 

Detroit, MI 48226 

313-226-9100 

Erin.Shaw@usdoj.gov

I also certify that I will provide a courtesy copy to the Chambers of the Hon. Stephen J.

Murphy, III, and to United States Probation Officer Charmarie Green on .

s/N. C. Deday LaRene

LaRene & Kriger, P.L.C.

1717 Penobscot Building

Detroit, Michigan 48226

(313) 967-0100

E-mail: d6644@deday.net

Michigan Bar No. P16420

Case 2:09-cr-20382-SJM-MAR Document 16 Filed 01/08/2010 Page 18 of 18