United States v. Sayer

United States Court of Appeals
For the First Circuit

No. 12-2489

UNITED STATES OF AMERICA,

Appellee,

v.

SHAWN SAYER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.

Peter J. Cyr for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

May 2, 2014
 LYNCH, Chief Judge. This case challenges the

constitutionality of the cyberstalking statute, 18 U.S.C. § 2261A.

Shawn Sayer pled guilty to one count of cyberstalking and was

sentenced to sixty months' imprisonment, the statutory maximum.

Sayer appeals, on constitutional grounds, from the district court's

denial of his motion to dismiss the cyberstalking charge in the

indictment. He also appeals from his sentence, arguing that he was

eligible for a downward departure from a Guidelines sentence and so

his sentence above the Guidelines range was unreasonable. We

affirm.

I.

A. Factual Background

The facts are not disputed on appeal.

Sayer and the victim in this case, Jane Doe,1 had dated

in Maine starting some time in 2004 until Jane Doe ended their

relationship in January 2006. After their break-up, Sayer

persistently stalked and harassed Jane Doe for over four years. At

first, Sayer showed up at stores and other places where he knew

that Jane Doe would be. In response, Jane Doe changed her routine

and gave up activities she loved for fear of seeing Sayer. She

also acquired a protection order against him in state court.

1
We refer to the victim in this case as "Jane Doe" to
preserve her privacy.

-2-
 Later, in the fall of 2008, Sayer started to use the

internet to induce anonymous third parties to harass Jane Doe

Specifically, several unknown men came to Jane Doe's house in Maine

one day in October 2008 claiming that they had met her online and

were seeking "sexual entertainment." Jane Doe was "shock[ed]" and

"terrified" by these "dangerous"-looking men and decided to stay

with a friend because she no longer felt safe in her home. She

later discovered an online ad in the "casual encounters" section of

Craigslist, a classified advertisements website, that had pictures

of her in lingerie that Sayer had taken while they were dating. The

ad gave detailed directions to her home and described a list of

sexual acts she was supposedly willing to perform. Jane Doe did

not place these ads nor did she authorize Sayer to place them.

The unwanted visits from men seeking sex persisted for

eight months until June 2009, when Jane Doe changed her name and

moved to her aunt's house in Louisiana to escape from Sayer and

this harassment. Jane Doe began a new career and felt safe for a

couple of months until August 25, 2009, when an unknown man showed

up at her home in Louisiana and addressed her by her new name.

Jane Doe said "the hairs on [her] arms stood up," as she had not

told anyone except for a neighbor and her parents that she was

moving. The man said he had met her online and was seeking a

sexual encounter, having seen pictures of her on an adult

pornography site. When Jane Doe later searched the internet, she

-3-
found videos of herself and Sayer engaged in consensual sexual acts

from when they were dating on at least three pornography sites.

Several of the websites included Jane Doe's name and then-current

Louisiana address. One site encouraged viewers to write to Jane

Doe and tell her what they thought of the videos.

Jane Doe contacted the police again in late September

2009 because someone had posted a fraudulent account in her name on

Facebook, a social networking site, which included sexually

explicit pictures of her. The false Facebook account was created

on August 21, 2009 from 24 Marion Avenue in Biddeford, Maine, which

had an unsecured wireless network; Sayer lived at 23 Marion Avenue.

The police found videos of Jane Doe "engaged in sexually explicit

activity" that had been posted to adult pornography sites on August

22, 25, and 29, 2009.

On November 5, 2009, the police searched Sayer's home

pursuant to a warrant. They found two desktop computers that

lacked hard drives and an empty laptop computer case. Sayer said

that his computers had been hacked, so he had thrown out the hard

drives. He also said he had thrown out his laptop after spilling

water on it. The police did not believe him because they had seen

"dozens of computer components scattered throughout his house."

The police seized a Nikon digital camera during this

search. Although Sayer had said there were no pictures of Jane Doe

on it, a forensic analysis of the camera uncovered a picture of

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Jane Doe in a sexual position and another photo of her engaged in

a sex act.

In December 2009, Jane Doe again contacted the police to

report another fake profile that had been created under her name on

MySpace, another social networking site. The profile had both her

old and new names, her Louisiana address, and links to adult

pornography sites hosting sex videos of Jane Doe.

The fake MySpace account was associated with multiple IP

addresses from unsecured wireless networks in Saco, Maine, near

where Sayer lived. A business with one of the unsecured networks

had surveillance, which had captured an old green pickup truck

resembling Sayer's green 1999 Ford truck parked outside for twenty

minutes at about the same time that the fake MySpace account was

being accessed. No one was seen getting into or out of the truck

during the time that it was parked there.

Jane Doe returned to Maine the first week in November

2009 because the men that Sayer sent to her Louisiana home had

scared her aunt and cousin, with whom she was staying. The

cyberstalking charge in this case only encompasses Sayer's

harassment of Jane Doe from "July 2009, the exact date being

unknown, until about November 2009." However, Sayer continued to

harass Jane Doe after she returned to Maine. As a result of new

fraudulent accounts Sayer posted in Jane Doe's name soliciting sex

from strangers, as many as six different men per night showed up at

-5-
her home in June 2010. The police searched Sayer's home again on

July 1, 2010. Forensic analysis of a laptop computer they seized

showed that Sayer had created "numerous fake profiles" through

Yahoo! Messenger, an online chat service, using some variation of

Jane Doe's name, between June and November 2009. All of the

profiles had sexually suggestive or explicit pictures of Jane Doe

and in many cases directed viewers to sex videos of her on adult

pornography sites. In many instances, Sayer, posing as Jane Doe,

chatted with men online and encouraged them to visit Jane Doe at

her home in Louisiana.

Jane Doe said Sayer did not stop sending men to her home

until he was arrested by state police in July 2010 for violating a

protection order she had against him.2

2
For example, an ad that Sayer posted on Craigslist in
January 2010 said Jane Doe was "looking for only five [guys] to
gang bang me. I will start hosting at 130 today. First five that
come get to join the fun. . . . This will be fun. I will do
anything!!!!" That ad included Jane Doe's name and current Maine
address.
Sayer also created a new false Facebook profile in Jane Doe's
name with links to videos of her having sex as late as June 2010.
That profile said: "I'm always horny and entertaining. I like to
sit out back and drink so stop in to say hi. If I am not out,
knock on my back window. I'll come out to play . . . . hehe. I
just love to f**k." In addition, two new MySpace profiles that
Sayer had created in March 2010 gave directions to Jane Doe's home
and invited both men and women to go there for sexual activity.

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B. Procedural History

1. Pre-Sentence Proceedings

On July 13, 2011, Sayer was indicted with one count of

cyberstalking, 18 U.S.C. § 2261A(2)(A), and one count of identity

theft, 18 U.S.C. § 1028(a)(7). As to the cyberstalking count, the

indictment charged:

From about July 2009, the exact date being
unknown, until about November 2009, in the
District of Maine, and elsewhere, Defendant,
Shawn Sayer with the intent to injure, harass,
and cause substantial emotional distress to a
person in another state, namely, Louisiana,
used facilities of interstate or foreign
commerce, including electronic mail and
internet websites, to engage in a course of
conduct that caused substantial emotional
distress to the victim and placed her in
reasonable fear of death or serious bodily
injury.

(emphasis added).

Sayer initially pled not guilty to both counts on July

19, 2011. On February 16, 2012, in a pre-trial motion to dismiss

the cyberstalking count, Sayer made three constitutional arguments:

(1) the cyberstalking statute is unconstitutional as applied to him

because it imposes criminal sanctions on protected speech; (2) the

statute is overbroad in violation of the First Amendment; and (3)

the statute is unconstitutionally vague in violation of the Fifth

Amendment.

The cyberstalking statute provided:

Whoever--

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 (2) with the intent–

(A) to kill, injure, harass, or place
under surveillance with intent to kill,
injure, harass, or intimidate, or cause
substantial emotional distress to a
person in another State . . . uses the
mail, any interactive computer service,
or any facility of interstate or
foreign commerce to engage in a course
of conduct that causes substantial
emotional distress to that person or
places that person in reasonable fear
of . . . death . . . or serious bodily
injury . . . shall be punished as
provided in section 2261(b) of this
title.

18 U.S.C. § 2261A(2)(A) (2006).3

The government opposed Sayer's motion on March 8, 2012,

and the district court held a hearing on May 4, 2012. On May 15,

2012, the district court issued a memorandum and order denying

Sayer's motion, ruling that § 2261A(2)(A) was neither

unconstitutional as applied to Sayer nor facially invalid. United

States v. Sayer, Nos. 2:11-CR-113-DBH, 2:11-CR-47-DBH, 2012 WL

1714746 (D. Me. May 15, 2012).

3
After Sayer was convicted of one count of cyberstalking
under § 2261A(2) and sentenced, the Violence Against Women
Reauthorization Act of 2013, Pub. L. No. 113-4, § 107(b), amended
18 U.S.C. § 2261A(2). The amended statute has no impact on this
appeal, as it is not retroactive, and so the 2006 version of
§ 2261A applies to Sayer. See United States v. Goncalves, 642 F.3d
245, 252 (1st Cir. 2011) (explaining that defendants are liable
under the statutes in effect at "the time of the conduct that makes
the[m] liable"). The parties do not argue otherwise. As a result,
we refer only to the 2006 version of § 2261A(2) in this opinion.

-8-
 The court rejected Sayer's as-applied First Amendment

challenge because "[n]one of th[e] activity [of which Sayer is

accused] is speech protected by the First Amendment." Id. at *2.

In addition, it reasoned that "everything that Sayer allegedly said

was 'integral to criminal conduct,' his criminal conduct seeking to

injure, harass or cause substantial emotional distress to the

victim," and so not protected by the First Amendment under Giboney

v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949). Id. at *2,

*3.

As to Sayer's facial challenge, the district court held

that § 2261A(2)(A) was not overbroad in violation of the First

Amendment because Sayer had not shown that "a substantial number of

[the statute's] applications [to protected speech] are

unconstitutional, judged in relation to the statute's plainly

legitimate sweep." Id. at *6 (first alteration in original)

(quoting United States v. Stevens, 559 U.S. 460, 473 (2010))

(internal quotation marks omitted). The court also concluded the

statute was not unconstitutionally vague. Id. at *9.

In a plea agreement dated August 2, 2012, the government

agreed to dismiss the identity theft charge against Sayer.4 On

August 13, 2012, Sayer entered a conditional plea of guilty to the

4
The government has reserved the right to reinstate the
identity theft charge in a superseding indictment if Sayer
successfully challenges his cyberstalking conviction in this
appeal.

-9-
cyberstalking charge, reserving the right to appeal from the

district court's denial of his motion to dismiss that count in the

indictment.

2. Sentencing Proceedings

The Presentence Investigation Report (PSR) calculated

Sayer's Guidelines sentencing range as 37 to 46 months, based on a

total offense level of 19 and a criminal history category (CHC) of

III. As to the offense level, the PSR gave Sayer credit for

acceptance of responsibility and deducted three levels from his

base offense level of 18. See U.S.S.G. §§ 2A6.2(a), 3E1.1. It

also added a four-level enhancement because Sayer's offense

involved two "aggravating factors" under § 2A6.2(b): (1) a long-

term pattern of stalking, threatening, or harassing behavior; and

(2) violation of court protection orders that Jane Doe had against

Sayer.

The PSR arrived at Sayer's CHC of III based largely on

Sayer's state court convictions for in-person stalking of Jane Doe

and violations of protection orders issued on her behalf. These

convictions arise from Sayer's conduct that pre-dates his July 2009

- November 2009 activities establishing his federal cyberstalking

conviction.5

5
These convictions include: (1) stalking based on Sayer's
violations of a protection order issued on behalf of Jane Doe on
January 19, 2007, as well as before that date; (2) violation of a
condition of release based on in-person contact or close proximity
with Jane Doe on several occasions, including on May 14, 2007; (3)

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 The PSR noted that Sayer had served a 22-month state

sentence from July 1, 2010 through May 20, 2011. It said that a

downward departure under U.S.S.G. § 5K2.23 may be warranted because

fourteen months of that state sentence arose from a July 1, 2010

criminal complaint charging violations "related to the instant

offense," including for Sayer's "ongoing harassment" of Jane Doe.

Section 5K2.23 permits a downward departure if the defendant has

"completed serving a term of imprisonment" and is eligible for an

adjustment under § 5G1.3(b). Section 5G1.3(b), in turn, provides

for an adjustment of a defendant's sentence if: "[1] a term of

imprisonment resulted from another offense that is relevant conduct

to the instant offense . . . and [2] that [other offense] was the

basis for an increase in the offense level for the instant

offense . . . ." U.S.S.G. § 5G1.3(b).

The district court held a sentencing hearing on December

4, 2012, at which the parties disputed whether Sayer was eligible

for a § 5K2.23 downward departure. Defense counsel argued Sayer's

conduct was "fungible, all this conduct is the same. He was

prosecuted in the state system for it, received a significant jail

sentence . . . and that's the basic underpinnings of our 5K2.23

argument." The government, in turn, argued that Sayer did not meet

violation of a condition of release for driving with a suspended
license on January 19, 2009; and (4) violation of a protection
order through contact or close proximity with Jane Doe on May 30,
2009.

-11-
the § 5G1.3 requirements referenced in § 5K2.23 because the 2010

offenses at issue were not the basis for the four-level enhancement

to Sayer's offense level.

At the hearing, the district court inquired about a

letter that the government had filed as a sentencing exhibit but

was not included in the PSR. The letter was written by an inmate

who had shared a jail cell with Sayer in Cumberland County Jail for

two days in August 2011. Sayer's cellmate had mailed the letter to

the Maine Computer Crime Unit right after being released from

prison, and he also testified at Sayer's detention hearing before

a magistrate judge on April 24, 2012.

The letter said that Sayer said he had "made [Jane Doe's]

life into a living hell" by posting footage of them having sex.

Sayer also told his cellmate that he "sent someone everyday to her

house" in Maine, and "it got so bad" Jane Doe had to put up signs

saying "they have the wrong person." On one occasion, she even

"pushed some guy down the stairs." The letter also disclosed that

Sayer asked the cellmate to get his friends who were "tough girls"

to "beat the shit out of [Jane Doe]" and "make her swim and not

come up from the water."6

6
At Sayer's detention hearing, the cellmate testified that
he had sent the letter because he was worried about Jane Doe's
well-being. He also testified that he did not seek anything in
return for the information in the letter other than help getting a
valid Maine driver's license, which he could not obtain due mostly
to fines owed for outstanding operating-under-the-influence
offenses.

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 Jane Doe also testified at the sentencing hearing and

recounted the progression of Sayer's stalking and harassment

starting in 2006, when she ended their relationship, up until he

was arrested in July 2010. She explained that what started out as

"creepiness," with Sayer showing up at the places she frequented,

"quickly . . . turned into something very scary." Jane Doe

described the impact of Sayer's cyberstalking in particular,

saying:

From November [2008] until [Sayer] was
arrested in July of 2010 man after man showed
up at my house. It didn't matter the time of
day; . . . I couldn't open my windows to let
the fresh air in. I couldn't keep my blinds
open to light. I felt scared to walk 25 feet
out to my car. No longer was I afraid of just
[Sayer]; I was afraid of any man who came near
me because he was a potential predator. . . .
It's very hard to sleep at night when
there are predators coming to your home and
banging on your windows. It's very hard to do
anything. It's hard to live.
[Sayer] had every intention o[f]
terrorizing me and maybe even hurting me. I
don't know how many times [a detective] called
me up to say, . . . [Sayer] has planned a gang
bang at your home tonight; you may not go
home. Don't go home. It's not a safe place.
. . .
I can't even describe to you, really,
in the words that I'm telling you how this has
impacted my life . . . . I am forever
changed. I will truly never be safe. . . .
And so I am fearful of what happens when
[Sayer] does get out of jail. . . . He knows
what he did. He purposely did it. And I'm
not so sure that it won't happen again. . . .

The court also heard testimony from witnesses who spoke

briefly on Sayer's behalf, including his father, older brother,

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sister, and nephew. Sayer testified last, expressing remorse for

the "hurt" he caused Jane Doe and "danger" he put her in, saying "I

never . . . wanted physical harm to come to her, but I know now

that it could have." He also highlighted his good performance in

prison and promised to continue counseling.

Sayer confirmed that he did not object to the PSR's

description of the facts, which the district court adopted. The

court also adopted the PSR's Guidelines calculations, including the

§ 2A6.2(b) four-level enhancement to Sayer's offense level,

resulting in a 37-46 month Guidelines range.

The district court acknowledged all of the parties'

arguments at sentencing, including Sayer's argument for a § 5K2.23

downward departure. However, the court chose to depart upward from

the Guidelines range, imposing a five-year sentence, the statutory

maximum. The court said regardless of whether the above-Guidelines

sentence is a departure under U.S.S.G. § 2A6.1 or an upward

variance, it would reach the same result, explaining:

[T]here are factors here that the sentencing
commission simply has not considered in the
guideline analysis. And they are, for
example, the use of anonymous third parties to
harass the victim and the extra danger that
that caused . . . [where the victim] has no
idea of the limits [these third parties] might
go to; the effect of posting on the Internet
her identity, address, intimate details, all
of which, as we know, is permanent, unlike
situations where stalking occurred in a
different era without the Internet; the many
involvements that this defendant had with law
enforcement, which did not deter him until the

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 final arrest; and the ongoing obsession that
he apparently had even up until August of '11
as reflected by the letter and testimony of
[Sayer's cellmate] at the detention hearing
and the chilling things that the defendant was
still possessing in his mind at that time.

We first address Sayer's constitutional challenges to the

indictment before turning to his sentencing appeal.

II.

Sayer's constitutional challenges to § 2261A(2) are

questions of law, which this court reviews de novo. See United

States v. Floyd, 740 F.3d 22, 38 (1st Cir. 2014).

A. As-Applied First Amendment Challenge

Under § 2261A(2)(A), a defendant must first have the

intent "to kill, injure, harass, or place [a victim] under

surveillance with intent to kill, injure, harass, or intimidate, or

cause substantial emotional distress." Second, the defendant must

engage in a "course of conduct" that actually "causes substantial

emotional distress . . . or places [the victim] in reasonable fear

of . . . death . . . or serious bodily injury . . . ." 18 U.S.C.

§ 2261A(2)(A). Sayer argues that because his course of conduct

involved speech, or online communications, it cannot be proscribed

in accord with the First Amendment. This argument is meritless.

"[I]t has never been deemed an abridgement of freedom of

speech or press to make a course of conduct illegal merely because

the conduct was in part initiated, evidenced, or carried out by

means of language, either spoken, written, or printed." Giboney v.

-15-
Empire Storage & Ice Co., 336 U.S. 490, 502 (1949). For example,

in Giboney the Court held that enjoining otherwise lawful picketing

activities did not violate the First Amendment where the sole

purpose of that picketing was to force a company to enter an

unlawful agreement restraining trade in violation of a state

criminal statute. Id. at 501-02. Speech integral to criminal

conduct is now recognized as a "long-established category of

unprotected speech." Stevens, 559 U.S. at 471. Sayer's online

communications fall in this category.

Sayer does not claim that his acts of creating false

online advertisements and accounts in Jane Doe's name or

impersonating Jane Doe on the internet constitute legal conduct.

In fact, he has admitted that his conduct, which deceptively

enticed men to Jane Doe's home, put Jane Doe in danger and at risk

of physical harm. To the extent his course of conduct targeting

Jane Doe involved speech at all, his speech is not protected.

Here, as in Giboney, it served only to implement Sayer's criminal

purpose. See United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir.

1990) (applying Giboney exception to a conspiracy charge because

the "act of conspiracy" does not implicate protected speech);

United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970)

(explaining that, as in the crimes of perjury, bribery, extortion

and threats, and conspiracy, "speech is not protected by the First

Amendment when it is the very vehicle of the crime itself").

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 The Eighth Circuit rejected a similar First Amendment

challenge to § 2261A(2)(A) in United States v. Petrovic, 701 F.3d

849 (8th Cir. 2012). There, the defendant had created a website

with links to images of his ex-wife "in the nude or engaging in sex

acts" with him. Id. at 853. The defendant also sent sexually

explicit pictures of his ex-wife to her work, her boss, and her

relatives. Id. The court held that these "communications," which

resulted in the defendant's § 2261A(2)(A) conviction, were integral

to criminal conduct and unprotected under Giboney, as they carried

out the defendant's extortionate threats to harass and humiliate

his ex-wife if she terminated their sexual relationship. Id. at

855. As in Petrovic, Sayer points to no lawful purpose of the

communications at issue here that would take them outside the

Giboney exception.7 Cf. United States v. Clemens, 738 F.3d 1, 12-

13 (1st Cir. 2013) (rejecting as-applied challenge to criminal

threat statute, 18 U.S.C. § 875(c), where jury could reasonably

conclude that defendant's speech received no First Amendment

protection). Nor can we surmise any on this record. Rather, his

conduct lured potentially dangerous men to Jane Doe's doorstep, men

7
Sayer's citation of United States v. Cassidy, 814 F. Supp.
2d 574 (D. Md. 2011), does not assist him as the case is easily
distinguishable on its facts and the pertinent law. Cassidy
involved the application of § 2261A(2) to online commentary
criticizing a public figure who led a Buddhist sect. Id. at 583,
586.

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whom Jane Doe was not free to ignore. As a result, § 2261A(2)(A)

has been constitutionally applied to Sayer.8

B. Facial Challenge

1. Overbreadth

Sayer asserts that § 2261A(2)(A) cannot be applied to

anyone because it is overly broad under the First Amendment, even

though the statute has been constitutionally applied to him. "The

traditional rule is that a person to whom a statute may

constitutionally be applied may not challenge that statute on the

ground that it may conceivably be applied unconstitutionally to

others in situations not before the Court." New York v. Ferber,

458 U.S. 747, 767 (1982). But First Amendment overbreadth doctrine

is an exception:

The showing that a law punishes a
"substantial" amount of protected free speech,
"judged in relation to the statute's plainly
legitimate sweep," Broadrick v. Oklahoma, 413
U.S. 601, 615 (1973), suffices to invalidate
all enforcement of that law, "until and unless
a limiting construction or partial

8
In United States v. O'Brien, 391 U.S. 367, 376-77 (1968),
the Supreme Court announced a test to determine whether a
government regulation on a course of conduct that combines "speech"
and "nonspeech" elements comports with the First Amendment. The
test applies only where the "communicative element in [the] conduct
is sufficient to bring into play the First Amendment." Id. at 376.
Where, as here, all of the speech in Sayer's course of conduct is
excluded from the First Amendment's protection, we need not apply
the O'Brien test. See Petrovic, 701 F.3d at 854-55 (not reaching
merits of the O'Brien test because communications at issue were
unprotected under Giboney).
Even if O'Brien were applicable, Sayer has waived any argument
that § 2261A(2)(A) fails O'Brien's requirements.

-18-
 invalidation so narrows it as to remove the
seeming threat or deterrence to
constitutionally protected expression," id. at
613.

Virginia v. Hicks, 539 U.S. 113, 118-19 (2003). Assuming Sayer has

standing to assert an overbreadth challenge, he bears the burden of

showing "'from the text of [the law] and from actual fact,' that

substantial overbreadth exists." Id. at 122 (alteration in

original) (quoting N.Y. State Club Ass'n, Inc. v. City of N.Y., 487

U.S. 1, 14 (1988)).

Sayer argues that because the text of § 2261A(2)(A)

encompasses speech that causes only substantial emotional distress,

it proscribes protected expression that is merely annoying or

insulting. His interpretation of § 2261A(2)(A) is unconvincing

because it takes the term "substantial emotional distress" wholly

out of context. See United States v. Williams, 553 U.S. 285, 294

(2008) (refusing to interpret words in statute in isolation because

"commonsense . . . counsels that a word is given more precise

content by the neighboring words with which it is associated").

Other circuits have rejected similar overbreadth claims. See

Petrovic, 701 F.3d at 856 (concluding § 2261A(2)(A) mostly applies

to conduct not protected by the First Amendment); United States v.

Bowker, 372 F.3d 365, 378-79 (6th Cir. 2004) (rejecting overbreadth

challenge to § 2261A's prohibition on conduct that places a person

in reasonable fear of death or serious bodily injury) (vacated on

other grounds, 543 U.S. 1182 (2005)). The interstate stalking

-19-
statute, which prohibits a course of conduct done with "intent to

kill, injure, harass, or place under surveillance with intent to

kill, injure, harass, or intimidate, or cause substantial emotional

distress" clearly targets conduct performed with serious criminal

intent, not just speech that happens to cause annoyance or insult.

As to factual examples of unconstitutional applications

of § 2261A(2)(A), Sayer points to only one: the anonymous speech

criticizing a public figure and religious leader in United States

v. Cassidy, 814 F. Supp. 2d 574 (D. Md. 2011). Otherwise, he lists

hypotheticals that purport to exemplify the statute's overbreadth,

even though § 2261A(2)(A) does not apply to most under a plain

reading of the statute.9 As a result, Sayer has not shown that

§ 2261A(2)(A) is substantially overbroad, either in an absolute

sense or relative to its legitimate applications, so as to warrant

the "strong medicine" of invalidating the entire provision. L.A.

Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 39

(1999) (quoting Ferber, 458 U.S. at 769); see Williams, 553 U.S. at

9
For example, Sayer's hypothetical of a "jaded lover sending
letters to an out-of-state organization or community with the
intent to annoy the ex-lover and diminish his reputation" ignores
the statute's specific intent requirement. (emphasis added).
Similarly, his example of a journalist violating the statute by
"accosting an out-of-state interviewee about [his or her] personal
conduct" similarly ignores the statute's intent and causation
requirements, as well as the requirement that the defendant engage
in numerous acts, or "course of conduct," that amount to stalking.
See 18 U.S.C. § 2266(2) (saying the "term 'course of conduct' means
a pattern of conduct composed of 2 or more acts, evidencing a
continuity of purpose").

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303 ("The 'mere fact that one can conceive of some impermissible

applications of a statute is not sufficient to render it

susceptible to an overbreadth challenge.'" (quoting Members of City

Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800

(1984))).

2. Void for Vagueness

Sayer also states that § 2261A is impermissibly vague

under the Due Process Clause of the Fifth Amendment because it does

not provide fair warning of the conduct it prohibits and creates a

risk of arbitrary enforcement. See Grayned v. City of Rockford,

408 U.S. 104, 108 (1972). This claim is waived, as Sayer merely

repeats his overbreadth argument and does not develop a separate

and distinct argument under the vagueness doctrine.10 See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990); see also Holder

v. Humanitarian Law Project, 561 U.S. 1, 20 (2010) (explaining the

10
We note that, in any event, § 2261A(2)(A) cannot be
unconstitutionally vague as applied to Sayer where there is no
doubt that the statute proscribed his course of conduct done with
intent to harass and intimidate Jane Doe. See United States v.
Shrader, 675 F.3d 300, 312 (4th Cir. 2012) (rejecting defendant's
vagueness challenge to § 2261A(2)(A) where the statute "clearly
proscribed [the defendant's] particular conduct"). As a result,
Sayer lacks standing to assert that § 2261A(2)(A) is impermissibly
vague as applied to hypothetical facts not before us. Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
495 (1982) ("A plaintiff who engages in some conduct that is
clearly proscribed [by a statute] cannot complain of the vagueness
of the law as applied to the conduct of others."); accord Blum v.
Holder, 744 F.3d 790, 799 n.14 (1st Cir. 2014) (no standing to
assert vagueness claim where plaintiffs' proposed conduct is
clearly proscribed by statute).

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difference between a First Amendment overbreadth claim and a Fifth

Amendment vagueness challenge).

III.

Sayer also appeals from his sentence of sixty months'

imprisonment, the statutory maximum. He argues that the district

court should have departed downward under U.S.S.G. § 5K2.23 from

his Guidelines range of 37 to 46 months rather than impose a

variant sentence exceeding the top of the Guidelines range by

fourteen months. Section 5K2.23 permits a reduction accounting for

time served on prior convictions if two conditions are met: (1) the

prior offense was based on conduct relevant to the defendant's

federal crime; and (2) the prior offense increased the Guidelines

offense level for the federal crime. U.S.S.G. § 5K2.23; U.S.S.G.

§ 5G1.3.

Sayer's argument, on appeal, that a § 5K2.23 downward

departure was warranted merely because he was eligible for it

ignores that the district court's refusal to depart downward was

discretionary, regardless of his eligibility. United States v.

Battle, 637 F.3d 44, 51-52 (1st Cir. 2011) (stating that decision

not to depart downward from Guidelines range is discretionary).

Nothing in § 5K2.23's text suggests it is an exception to the

general rule that refusals to depart or vary from the Guidelines

are discretionary. Rather, § 5K2.23 is explicit that a "downward

departure may be appropriate" if its conditions are met. U.S.S.G.

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§ 5K2.23 (emphasis added). Section 5K2.23's instruction that a

"departure should be fashioned to achieve a reasonable punishment

for the instant offense" emphasizes the discretionary nature of the

decision. Id.

Here the district court was explicit that it did not need

to decide whether Sayer in fact met the preconditions for a

§ 5K2.23 departure because its reasons for imposing a variant

sentence at the statutory maximum also explain its refusal to

depart downward. The court then articulated numerous reasons for

its discretionary upward variance, including: (1) the extra danger

and fear that Sayer caused by using "anonymous third parties" to

harass Jane Doe, as "[Jane Doe] ha[d] no idea of the limits they

might go to;" (2) the permanent nature of the intimate details that

Sayer posted about Jane Doe online; (3) the fact that Sayer's many

involvements with law enforcement did not deter him, until his

final arrest; and (4) Sayer's "ongoing obsession" with Jane Doe, as

evidenced by his cellmate's letter and testimony, which revealed

the "chilling things that [Sayer] was still possessing in his mind"

as late as August 2011. The court also addressed relevant

sentencing factors, 18 U.S.C. § 3553(a), and noted that an above-

Guidelines sentence was needed to keep Jane Doe and the public safe

from Sayer, as well as to give Sayer enough time to receive

treatment so that he does not repeat his behavior with Jane Doe or

in another relationship.

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 The district court's reasoned decision to vary upward

rather than depart downward under § 5K2.23 was not an abuse of

discretion. See United States v. Santiago-Rivera, 744 F.3d 229,

234 (1st Cir. 2014) (reviewing reasonableness of variant sentence

under "highly deferential abuse-of-discretion standard"). Sayer's

claim that the district court did not give sufficient weight to

certain mitigating factors, such as his participation in

rehabilitation programs in state prison or the fact that he was an

"exemplary inmate" without disciplinary problems, does not persuade

us otherwise. We have said that the "mere fact that 'the

sentencing court chose not to attach to certain of the mitigating

factors the significance that the appellant thinks they deserved

does not make the sentence unreasonable.'" Id. (quoting United

States v. Clogston, 622 F.3d 588, 593 (1st Cir. 2011)). The

district court "articulate[d] a plausible rationale" for the

"sensible result" reached. United States v. Carrasco-De-Jesús, 589

F.3d 22, 30 (1st Cir. 2009). More is not required.

Finally, Sayer argues the district court erred in

considering his cellmate's statements in its sentencing analysis

because the PSR did not mention them and the government first

introduced the statements for sentencing purposes at the sentencing

hearing. His claim of lack of notice is not credible for three

reasons. First, Sayer's defense counsel was at the April 24, 2012

detention hearing at which the cellmate testified and had

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vigorously cross-examined the cellmate at that hearing. Second,

Sayer knew before the sentencing hearing that the government would

argue the cellmate's statements supported an above-Guidelines

sentence because that is precisely what its sentencing memorandum

had argued. Third, the government had filed the cellmate's letter

as a sentencing exhibit with the district court several days before

the sentencing hearing. See United States v. Cintrón-Echautegui,

604 F.3d 1, 6 (1st Cir. 2010) (holding that district court did not

err in considering testimony from witnesses at defendant's trial

for sentencing purposes where defendant had prior notice and the

opportunity to challenge the reliability of the testimony); cf.

United States v. Avilés-Santiago, ___ F. App'x ___, 2014 WL 983304,

at *1 (1st Cir. Mar. 14, 2014) (holding that district court

committed procedural error where it increased defendant's sentence,

without any prior notice to the defendant, based on a conclusion it

had drawn solely from the separate proceeding of a co-defendant).

Sayer also contends the cellmate's statements were

unreliable because of his criminal history, drug addiction, and

access to Sayer's discovery materials while they were in jail

together. The cellmate, however, had denied seeing Sayer's

discovery materials at the detention hearing, and the magistrate

judge who presided over that hearing found his testimony to be

credible. Under these circumstances, the district court did not

abuse its discretion in deeming the cellmate's testimony reliable

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and so relying on it at sentencing. See United States v. Platte,

577 F.3d 387, 392-93 (1st Cir. 2009) ("[C]redibility determinations

are part of the sentencing court's basic armamentarium. . . . [A]

reviewing court must cede a sentencing court wide latitude in

determining the probative value of . . . testimony.").

IV.

For the reasons stated above, we affirm.

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