Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 18-1721
UNITED STATES OF AMERICA,
Appellee,
v.
DONALD CAIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge
Before
Torruella, Stahl, and Kayatta,
Circuit Judges.
Joshua L. Solomon and Pollack Solomon Duffy LLP on brief for
appellant.
Renée M. Bunker, Assistant United States Attorney, Appellate
Chief, and Halsey B. Frank, United States Attorney, on brief for
appellee.
July 1, 2019
STAHL, Circuit Judge. Defendant-Appellant Donald Cain
appeals his sentence for stalking. Following Cain's guilty plea,
the district court calculated a Sentencing Guidelines
("Guidelines") range of 30 to 37 months. The district court
ultimately imposed the statutory maximum sentence of 60 months,
noting that Cain had relentlessly harassed the victim for over a
year, threatened her children, mother, and former husband, and
repeatedly defied a court protection order.
On appeal, Cain challenges the substantive
reasonableness of his sentence. He contends that the district
court abused its discretion in imposing an above-Guidelines
sentence. We affirm.
I. Factual Background
"Because this sentencing appeal follows from a guilty
plea, we 'glean the relevant facts from the plea agreement, the
change-of-plea colloquy, the presentence investigation report
[PSR], and the transcript of [sentencing].'" United States v.
Severino-Pacheco, 911 F.3d 14, 17 (1st Cir. 2018) (quoting United
States v. Fernández-Cabrera, 625 F.3d 48, 50 (1st Cir. 2010)).
After a short courtship, Cain married L.H., a resident
of Houlton, Maine, in August 2014. At the time, Cain was living
in Calais, Maine, and working as a superintendent overseeing the
construction of a local Walmart. Shortly after the marriage, Cain
relocated to San Antonio, Texas, for his employment. Although
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Cain insisted that L.H. accompany him to Texas, she decided to
remain in Maine because of her strong ties to the area.
In November 2014, L.H.'s employer alerted the FBI "that
multiple anonymous complaints were being filed on a daily basis
against L.H. on the [company's] website." The complaints "accused
L.H. of sexually harassing her employees, barring employment to
people because of their race, flirting with married customers, and
generally providing poor service to customers." After conducting
an internal investigation, the employer concluded that the
complaints were fabricated and that "[t]he frequency and volume of
the complaints caused enough disruption" to warrant law
enforcement involvement.
The resulting FBI investigation revealed that between
November 27, 2014, and December 27, 2015, "Cain stalked and
harassed L.H. via telephone calls and text messages, some of which
contained threats to injure L.H. and her immediate family members."
At all relevant times, Cain resided outside of Maine and sent the
messages through a "facility of interstate commerce, namely a
telephone."
Initially, Cain called L.H. approximately 25 times per
day. When L.H. refused to answer Cain's communications and changed
her phone number and email address, Cain would instead harass her
mother, sister, and ex-husband.
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On December 13, 2014, L.H. recorded a call from Cain in
which he said:
I'm going to get rid of your mother . . . if
I have to drive f***ing all the way over there
and shoot her in the f***ing head myself, I'm
going to get rid of her because I don't like
that b****.
That same day, Cain texted L.H. a video depicting him sitting in
a vehicle, holding a gun to his head, and threatening to kill
himself. Concerned, L.H. asked that the San Antonio Police
Department conduct a wellbeing check on Cain. During the check,
Cain admitted that he sent the video to L.H. "to get a rise out of
her" and compel her to visit him. He further admitted to sending
a similar video two or three weeks prior.
On February 12, 2015, L.H. went to the Houlton Police
Department to complain about Cain's harassment. While L.H. was at
the police station, Cain called her several times. An officer
answered a few of these calls and warned Cain to leave L.H. alone,
but he ignored those warnings. During one of these calls, the
caller ID function on L.H.'s phone identified the call as coming
from the Houlton Police Department itself. An officer answered
that call on speaker phone, and he and L.H. both identified Cain
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as the caller. This was one of multiple occasions where Cain
called L.H. using "spoofing" technology.1
Thereafter, on March 3, 2015, L.H. obtained a temporary
protection-from-harassment order. Then, apparently on the same
day (although the record is not entirely clear), the Houlton Police
Department obtained a warrant for Cain's arrest for telephone
harassment, and he was in fact arrested in Houlton and personally
served the protection order on March 4, 2015. A final protection
order was issued on April 6, 2015.
Despite the protection order, Cain escalated his threats
against L.H. Soon, he was calling, texting, or emailing her over
100 times per day. On June 5, 2015, alone, Cain sent L.H. 122
text messages and made 100 phone calls. In these communications,
Cain frequently threatened to kill L.H. and encouraged her to
commit suicide. He also threatened to rape L.H. and rape and
murder her family members, claiming that he could have members of
the motorcycle gang Hell's Angels commit those crimes.
Cain further accused L.H. of promiscuity and called her
vulgar names such as "whore," "bitch," and "pigf***er." He
utilized a cellphone application to track L.H.'s location and sent
her messages referencing places she had been, insinuating that she
1 Caller ID "spoofing" is the practice of changing the
caller's phone number to any number other than the actual calling
number.
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was being surveilled. In addition, on several occasions between
July and September 2015, Cain sent L.H. videos of the two of them
having consensual sex that were recorded without her permission.
He threatened to distribute the videos if L.H. would not return
his calls immediately. And, in even more macabre fashion, he also
sent L.H. what appeared to be her own obituary designed for
publication in a local newspaper.
Cain was ultimately arrested on federal stalking charges
on January 21, 2016. Although he was released on bail, he was
later cited in Nevada for driving under the influence of alcohol
on April 19, 2018. He was subsequently arrested on May 8, 2018,
for violating one of the conditions of bail -- namely, that he
refrain from consuming alcohol.
II. Procedural Background
On August 9, 2016, Cain was indicted on three counts.
Count One charged him with stalking in violation of 18 U.S.C. §
2261A(2)(B), and Counts Two and Three charged him with transmitting
threatening communications in interstate commerce in violation of
18 U.S.C. § 875(c).
On January 9, 2018, Cain pleaded guilty to Count One
pursuant to a plea agreement. In exchange, the government agreed
to dismiss Counts Two and Three and to recommend a sentence at the
low end of the applicable Guidelines range. According to the PSR,
Cain's base offense level was 18, which was increased four levels
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pursuant to U.S.S.G. § 2A6.2(b)(1) due to the presence of three
aggravating factors: violation of a court protection order,
threatened use of a dangerous weapon, and engaging in a pattern of
activity involving stalking, threatening, and harassing the
victim. Probation recommended an additional two-level increase
for obstruction of justice due to the magistrate judge finding
Cain's testimony not credible at a prior suppression hearing.
Finally, probation suggested that a reduction pursuant to U.S.S.G.
§ 3E1.1 for acceptance of responsibility was not warranted,
yielding a total offense level of 24.
At sentencing, the district court declined to apply the
two-level increase for obstruction of justice. The court further
reduced the offense level by three for acceptance of
responsibility, yielding a final offense level of 19. Cain's
Criminal History Category was determined to be I, resulting in a
Guidelines range of 30 to 37 months.2
Pursuant to the plea agreement, the Government requested
a sentence of 30 months. Defense counsel, noting Cain's work
ethic, support from his family, and lack of criminal history,
requested a sentence "far below the 30 months that the government
ha[d] recommended."
2 Probation, by contrast, had recommended a total offense
level of 24, which corresponds to a Guidelines range of 51 to 63
months.
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The district court then addressed the sentencing factors
enumerated in 18 U.S.C. § 3553(a). It began by discussing Cain's
steady work history, family ties, and minimal criminal history.
However, the court observed that Cain had waged "an unrelenting
and vicious campaign of harassment against L.H." that lasted
thirteen months. Even taking into account that the unraveling of
a relationship can be contentious, Cain's conduct amounted to "a
constant and deliberate psychological torture." The court noted
that Cain had unleashed a constant barrage of emails, texts, and
calls, in which he repeatedly threatened to harm L.H. and her
family, in defiance of a court protection order. The court
continued, stating that Cain's crime was far removed from "an
average stalking crime, if there is such a thing," and that it had
"never seen a stalking crime of such length, such intensity, such
vulgarity, such scope, such sophistication, such impact."
Ultimately, the court concluded that Cain's conduct passed from
the realm of stalking into "domestic terrorism." Weighing these
factors, the district court imposed the statutory maximum sentence
of 60 months. See 18 U.S.C. § 2261(b)(5). This timely appeal
followed.
III. Analysis
On appeal, Cain only challenges the substantive
reasonableness of his sentence, arguing that the imposition of the
statutory maximum was indefensible given his positive attributes
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and minimal criminal history.3 He also notes that because the
court imposed the maximum sentence, he "received no benefit from
having pled guilty." At his sentencing, Cain made no objection to
the length of his sentence.4
"In reviewing the [substantive] reasonableness of a
sentence outside the Guidelines range, appellate courts may . . .
take the degree of variance into account and consider the extent
of a deviation from the Guidelines." Gall v. United States, 552
U.S. 38, 47 (2007). "Regardless of whether the sentence imposed
is inside or outside the Guidelines range, the appellate court []
review[s] the sentence under an abuse-of-discretion standard."
Id. at 51. "Although the standard of review for unpreserved
challenges to the substantive reasonableness of a sentence remains
unclear," even in the event of a preserved challenge "an appellate
court only reverses where the sentence is outside of the expansive
universe of reasonable sentences." Severino-Pacheco, 911 F.3d at
21 (internal quotation marks, alterations, and citations omitted).
3 The plea agreement also included a waiver of appeal.
However, because Cain only waived his right to appeal "[a] sentence
of imprisonment that does not exceed 37 months," the waiver is
inapplicable here.
4 "The Supreme Court recently granted certiorari on the
question of whether a formal objection after pronouncement of
sentence is necessary to invoke appellate reasonableness review of
the length of a defendant's sentence." United States v. Reyes-
Gomez, No. 17-1757, 2019 WL 2428448, at *2 n.3 (1st Cir. June 11,
2019) (internal quotation marks, alteration, and citation
omitted).
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"[T]he linchpin of a reasonable sentence is a plausible sentencing
rationale and a defensible result." United States v. Martin, 520
F.3d 87, 96 (1st Cir. 2008) (citing United States v. Jiménez-
Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc), abrogated by
Rita v. United States, 551 U.S. 338 (2007)).
Cain's argument fails this highly deferential standard
of review, as "we have scant difficulty concluding that the
defendant's above-the-range sentence 'served the objectives of
sentencing.'" United States v. Santiago-Rivera, 744 F.3d 229, 234
(1st Cir. 2014) (alteration omitted) (quoting Kimbrough v. United
States, 552 U.S. 85, 91 (2007)). As the district court noted,
Cain embarked on a relentless thirteen-month stalking campaign.
He threatened to brutally rape and murder the victim and her family
members, often in graphic terms. The cumulative effect of the
many thousands of texts, phone calls, and emails Cain sent caused
L.H. to live a life of constant paranoia and fear. To be sure,
there were mitigating factors, including Cain's decision to plead
guilty, which protected L.H. from having to testify at trial.
However, "a defendant does not ensure himself a reduced sentence
simply by identifying potentially mitigating factors." United
States v. Madera-Ortiz, 637 F.3d 26, 32 (1st Cir. 2011) (citing
United States v. Carrasco-de-Jesús, 589 F.3d 22, 29 (1st Cir.
2009)). An experienced jurist ultimately decided that the
egregious details of Cain's crime warranted the statutory maximum
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sentence. While some might deem that sentence harsh, that is the
type of judgment call we have repeatedly stated is within the sound
discretion of the sentencing court. See id., 637 F.3d at 32
(citing United States v. Stone, 575 F.3d 83, 97 (1st Cir. 2009)).
Finally, we briefly address Cain's argument that his
sentence was disproportionate to sentences imposed in other
stalking cases. For example, he notes that in United States v.
Sayer, 748 F.3d 425, 436-37 (1st Cir. 2014), we affirmed a district
court's imposition of the statutory-maximum sixty-month sentence
where the defendant stalked his victim for a much longer period of
time -- four years.5 Similarly, in United States v. Humphries,
No. 12-cr-347-RWS, 2013 WL 5797116, at *6 (S.D.N.Y. Oct. 28, 2013),
the district court imposed a below-Guidelines thirty-month
sentence on a defendant who stalked his victim for three years and
was convicted at trial. However, Cain's reliance on these cases
is misplaced. We recently cautioned that sentences in other cases
and jurisdictions do not establish a baseline for substantive
reasonableness. See United States v. Ríos-Rivera, 913 F.3d 38, 46
(1st Cir. 2019). Again, the core of our analysis is whether the
5Cain further contends that the defendant's conduct in Sayer
was more egregious because that defendant physically stalked the
victim and created fraudulent advertisements in the victim's name
that solicited sexual encounters from strangers. Therefore, Cain
reasons his sentence should be lower. We do not find Sayer a
helpful comparison. As the district court observed, Cain sent
thousands of threats, and many of them were highly violent in
nature.
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sentencing court has posited a "plausible sentencing rationale and
a defensible result." Santiago-Rivera, 744 F.3d at 234 (internal
quotation marks and citation omitted). "[I]t is not a basis for
reversal that we, if sitting as a court of first instance, would
have sentenced the defendant differently." Martin, 520 F.3d at
92. Because the district court articulated a "plausible rationale
and a defensible result," we cannot say its imposition of the
statutory-maximum sentence was an abuse of discretion.6
IV. Conclusion
For the foregoing reasons, the district court's sentence
is AFFIRMED.
6In his brief, Cain also states "it is noteworthy that the
calculated [Guidelines] range already included enhancements of the
type that appeared to motivate the harshness of the District
Court's sentence." To the extent this constitutes an argument, it
is waived for lack of developed argumentation. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Even if this contention
were not waived, it would not affect our analysis.
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United States v. Cain
Combined Opinion