United States v. Leach

United States Court of Appeals
For the First Circuit

No. 22-1878

UNITED STATES OF AMERICA,

Appellee,

v.

GARY E. LEACH,

Defendant, Appellant.

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

[Hon. Angel Kelley, U.S. District Judge]

Before

Gelpí, Selya, and Lynch,
Circuit Judges.

Christine DeMaso, Assistant Federal Public Defender, for
appellant.
Karen L. Eisenstadt, Assistant United States Attorney, with
whom Joshua S. Levy, Acting United States Attorney, was on brief,
for appellee.

December 21, 2023
 SELYA, Circuit Judge. Defendant-appellant Gary E. Leach

had a warped view of what it meant to have "fun." That warped

view culminated in the appellant's convictions for cyberstalking

and extortion. The appellant now challenges his upwardly variant

sentence, contending that it is procedurally flawed, substantively

unreasonable, and burdened by an unlawfully imposed condition of

supervised release. Concluding that the appellant's arguments

lack force, we affirm his sentence in all respects.

I

We briefly rehearse the relevant facts and travel of the

case. "Where, as here, a sentencing appeal follows a guilty plea,

we glean the relevant facts from the change-of-plea colloquy, the

unchallenged portions of the presentence investigation report (PSI

Report), and the record of the disposition hearing." United States

v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).

At various times during 2019 and 2020, the appellant

attempted to solicit video performances of a sexual nature from at

least a dozen Instagram users. We summarize succinctly his

harassment of two of those users (whom we shall call Jane Doe A

and Jane Doe B) — harassment that formed the basis of his

convictions for cyberstalking and extortion.

In October of 2019, the appellant, using an Instagram

alias, convinced Jane Doe A to participate in video calls in which

- 2 -
she would undress and perform various sexual acts. In exchange,

the appellant agreed to pay her for her performances.

The appellant instructed Jane Doe A to show her face on

camera during these calls, and he recorded one or more of them

without Jane Doe A's knowledge or consent. And when the calls ran

their course, the appellant did not pay Jane Doe A as promised.

Approximately two months passed. Then, the appellant

contacted Jane Doe A from a different Instagram alias and sent her

a video recording of one of their earlier calls. He threatened to

send the video to her parents if she did not engage in more sexually

oriented video calls with him. Fearing embarrassment,

humiliation, shame, and the like, Jane Doe A complied.

On many occasions throughout 2020, the appellant

contacted Jane Doe A from numerous Instagram aliases, threatening

to send explicit recordings of her to her family members if she

did not comply with his demands to video chat with him. On certain

occasions, the appellant demanded that Jane Doe A leave work to

video chat with him. Jane Doe A again obeyed, and the appellant

coerced her into performing more sexual and degrading acts over

video calls on Instagram.

Throughout these interactions, Jane Doe A repeatedly

expressed her desire not to perform the coerced acts. At one

point, she told the appellant, "I just wanna know why you want to

- 3 -
make me so miserable and to keep chasing me like this." He replied,

"Honestly, it's fun and you're hot."

The appellant repeatedly promised that he would delete

the recordings and photographs he had amassed of Jane Doe A if she

complied with his requests. But these promises were honored only

in the breach: the appellant continued to retain electronic copies

of this content, create new content, and use the recordings to

extort more video calls from Jane Doe A.

In 2020, the appellant solicited Jane Doe B for sexual

content and recorded her during a Snapchat video call. The

appellant subsequently sent an explicit recording of Jane Doe B to

her roommate and repeatedly attempted to contact Jane Doe B from

different anonymous social media accounts, threatening at one

point to send a forty-minute recording of her to her friends if

she did not respond to him.

The dam broke in early 2021. When Jane Doe A continued

to receive harassing messages from the appellant by means of new

Instagram aliases, she contacted the Federal Bureau of

Investigation (FBI) and met with FBI agents. She provided the

agents with a photograph of the appellant's face that he had sent

to her,1 and the agents identified him as the person in the

1 The appellant transmitted the photograph to Jane Doe A
through an Instagram application that allowed it to be viewed for
a temporary duration. Jane Doe A was able to make a permanent

- 4 -
photograph through a reverse image search. The appellant's arrest

followed.

In due course, the government charged the appellant by

criminal complaint with cyberstalking, see 18 U.S.C.

§ 2261A(2)(B), and extortion by interstate threat of injury to

reputation, see id. § 875(d). The appellant soon pleaded guilty

to the charged offenses. After accepting the appellant's guilty

plea, the district court ordered the preparation of a PSI Report.

The PSI Report recommended a guideline sentencing range

of thirty to thirty-seven months. As part of the plea agreement,

the appellant agreed not to challenge any prison sentence of

thirty-seven months or less.

The district court convened the disposition hearing on

July 20, 2022. At that hearing, neither party objected either to

the probation department's proposed guideline sentencing range or

to any other part of the PSI Report. Jane Doe A delivered a

victim-impact statement in which she described how the appellant

repeatedly threatened and demeaned her, causing her to become

suicidal and making her feel that she "had no other option in [her]

life than to be a sexual slave." The government recommended a

thirty-two-month term of immurement, to be followed by thirty-six

months of supervised release. The appellant's counsel argued for

copy of the image by taking a photograph of her screen using a
digital camera before the image vanished.

- 5 -
a prison sentence of eighteen months, to be followed by thirty-six

months of supervised release.

After questioning the parties about what efforts had

been made to ensure that any offending content had been deleted,

the district court continued the hearing with instructions to the

parties to provide the court with more information about the

appellant's social media accounts and electronic devices. Once

the parties submitted the requested information, the disposition

hearing resumed on October 26, 2022.

At the end of this session, the district court imposed

an incarcerative sentence of forty-two months, to be followed by

thirty-six months of supervised release. It also imposed the

special conditions of supervised release recommended in the PSI

Report, including a prohibition against working or volunteering in

any capacity that would cause the appellant to come in direct

contact with children (except with the approval of a supervising

probation officer).

In thoughtfully articulating its decision to impose an

upwardly variant sentence, the district court gave several

reasons:

• First, it highlighted the fact that the appellant

caused his victims "[s]exually-based trauma," which

it described as "among the most intimate and

personal types of harm that one person can inflict

- 6 -
 upon another." Relatedly, the court noted that

"[p]ost-traumatic stress disorder resulting from

being sexually violated can affect every aspect of

a victim's life." With these considerations in

mind, the court gave special attention to Jane Doe

A's statement about the trauma she suffered from

the appellant's actions.

• Second, the court pointed to the "length of time

over which [the appellant] traumatized his

victims," which included "a continuing 18-month

campaign of harassment, intimidation, and

extortion."

• Third, the court spoke of the "power dynamics

present in this case," explaining that the

appellant's behavior was "outrageous," in part

because he "took gratification in wielding" power

over his victims and "revel[ed]" in their anguish.

• Fourth, the court considered "the special role that

the Internet played in [the] case," remarking the

appellant's use of "multiple anonymous social media

accounts" and "the difficulty of identifying and

prosecuting Internet-based sex criminals."

The appellant objected. He claimed, among other things,

that the parties lacked sufficient notice of the district court's

- 7 -
intention to impose an upwardly variant sentence. Even so, the

appellant did not request a continuance. The district court

overruled the appellant's objection in an electronic order,

explaining that because the "upward variance was based on facts

culled from the charging documents, the pre-sentence report, the

parties' sentencing submissions, and the victim impact statement,

all of which were readily available to the parties months before

imposition of the variance . . . [,] there was no deficiency of

notice."

The appellant also objected to the special supervised

release condition prohibiting him from working or volunteering in

any capacity that would cause him to come in direct contact with

children. The district court overruled this objection as well and

declined to strike the condition.

This timely appeal followed.

II

In this venue, the appellant mounts a challenge to his

upwardly variant sentence. He argues that the sentence was

procedurally flawed because the district court neither gave

sufficient notice of its intention to impose an upward variance

nor adequately explained the reasons underlying the variance. In

addition, the appellant argues that the sentence was substantively

unreasonable. He also assails the condition of supervised release

prohibiting him from working or volunteering in any capacity that

- 8 -
would put him in direct contact with children, arguing that this

restriction was not sufficiently grounded in the record.

In adjudicating sentencing appeals, we typically begin

by "examin[ing] any claims of procedural error" and — if no

procedural error is found — proceed to examine any challenge to

the substantive reasonableness of the sentence. United States v.

Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020); see United States v.

Miranda-Díaz, 942 F.3d 33, 39 (1st Cir. 2019). Tagalong matters,

such as complaints about conditions of supervised release, can

then be addressed.

We review preserved claims of sentencing error, whether

procedural or substantive, for abuse of discretion. See United

States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012). But

we review unpreserved claims only for plain error. See United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

With these standards in mind, we address the appellant's

asseverational array.

A

We start with the appellant's twin claims of procedural

error. We treat them separately.

1

In his most loudly bruited claim, the appellant submits

that the district court imposed the upward variance without

sufficient notice. This claim was preserved below and, thus, our

- 9 -
review is for abuse of discretion. See Medina-Villegas, 700 F.3d

at 583.

It is well-established that a sentencing court is not

required to give the parties advance notice before imposing an

upwardly variant sentence.2 See Irizarry v. United States, 553

U.S. 708, 715-16 (2008); United States v. Santini-Santiago, 846

F.3d 487, 489-90 (1st Cir. 2017). Even so, we have indicated,

albeit in dictum, that either advance notice or, upon request, a

continuance may be required when the court "propos[es] to adopt a

variant sentence relying on some ground or factor that would

unfairly surprise competent and reasonably prepared counsel."

United States v. Vega-Santiago, 519 F.3d 1, 5 (1st Cir. 2008)

(emphasis in original). The ambit of "unfair surprise," though,

is narrow. There is no unfair surprise either when a variance is

premised on "[g]arden variety considerations of culpability,

criminal history, likelihood of re-offense, seriousness of the

crime, nature of the conduct and so forth" or when a variance is

premised on "familiar and undisputed" facts. Id. at 5-6; see

United States v. Politano, 522 F.3d 69, 75 (1st Cir. 2008) (holding

2 Although Rule 32(h) of the Federal Rules of Criminal
Procedure requires "reasonable notice" of an upward departure from
the guidelines, this requirement does not apply to variances (as
opposed to departures). See United States v. Daoust, 888 F.3d
571, 575 (1st Cir. 2018); United States v. Santini-Santiago, 846
F.3d 487, 489-90 (1st Cir. 2017). The parties do not dispute that
the sentence imposed in this case comprised an upward variance,
not a departure.

- 10 -
that upward variance based on seriousness of crime, need for

deterrence, and risk of recidivism did not require advance notice).

In this case, the appellant's claim of unfair surprise

dissolves in the acid bath of the record. After all, it is not

unfair to charge a party with notice of what is plainly there to

be seen. In this case, no advance notice was required for the

district court to impose the upward variance.

The appellant's contrary claim boils down to the

proposition that the district court sandbagged him because it "had

an opportunity to give the parties notice of its intention to vary

upwards" but elected not to. But this proposition hinges on the

kind of "mechanical notice rule" that we have firmly rejected with

respect to the imposition of upward variances. Vega-Santiago, 519

F.3d at 5.

On these facts, it is of no moment that the district

court — on the first day of the appellant's sentencing hearing —

said nothing about the possibility that it might upwardly vary,

continued the hearing to a later date, and said nothing about

imposing an upward variance in the three months before the hearing

resumed. What counts is that it was readily apparent from the

existing record that the ingredients for an upward variance were

present. In such a situation, the mere lack of an explicit mention

of a possible upward variance should not have caused competent and

reasonably well-prepared counsel to believe that an upward

- 11 -
variance was off the table. See United States v. Daoust, 888 F.3d

571, 576 (1st Cir. 2018) ("Upwardly variant sentences are

well-known to be within the universe of possible

sentences . . . .").

Here, moreover, the appellant's claim of unfair surprise

is undercut by his failure to request a continuance. See United

States v. Mathur, 624 F.3d 498, 508 (1st Cir. 2010) ("[A]

defendant's claim of unfair surprise at sentencing is 'severely

undermined, if not entirely undone, by his neglect to ask the

district court for a continuance to meet the claimed exigency.'"

(quoting United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st

Cir. 1989))). The factors on which the district court relied were

plainly apparent from the record and — absent willful blindness —

the appellant's counsel surely should have realized, no later than

the first day of the disposition hearing, that an upward variance

was within the realm of possibility. And if counsel thought that

more time was needed to marshal arguments against an upward

variance, she should have sought that time from the district court

by moving for a continuance. The failure to make such a motion

throws considerable shade on counsel's claim of unfair surprise.

We reject this claim.

2

The appellant next claims that his sentence was

procedurally infirm due to the lack of a "sufficient explanation

- 12 -
to justify the above-guidelines sentence." Although there is a

dispute between the parties as to whether this claim was preserved,

we assume — favorably to the appellant — that it was.

Consequently, we review the claim for abuse of discretion. See

Medina-Villegas, 700 F.3d at 583.

We start with a bedrock principle: "a reviewing court

must assess the sentencing court's explanation of an upwardly

variant sentence in a practical, common-sense manner." Díaz-Lugo,

963 F.3d at 156. In conducting this assessment, we ask whether

the district court's explanation "relies on factors not adequately

accounted for" in fashioning the guideline sentencing range,

identifies each factor and explains why it calls for an upward

variance, and is "commensurate with the extent of the variance."

Id. We are cognizant, however, that the district court may rely

on factors already considered in constructing the guideline

sentencing range as long as it explains how the guidelines do not

"sufficiently account[] for the idiosyncrasies of a particular

case." Id.; see United States v. Del Valle-Rodríguez, 761 F.3d

171, 176-77 (1st Cir. 2014).

The district court's explanation of the appellant's

sentence does precisely what our case law requires: it identifies

relevant factors justifying an upward variance and explains why

the guidelines do not adequately account for each factor, given

the idiosyncrasies of the case at hand. Importantly, the first

- 13 -
factor identified by the district court — the degree of severity

of the harm caused to the appellant's victims (that is, sexually

based trauma, which made one of his victims suicidal) — is not

accounted for either by the sentencing guidelines or by the

relevant cyberstalking and extortion statutes. What is more, the

degree of severity of the trauma suffered by the appellant's

victims is plainly supported by the record: Jane Doe A's

victim-impact statement describes in detail how she was humiliated

and isolated by the appellant's conduct and how she continued to

suffer from fear and anxiety when reminded of his harassment.3

So, too, the district court explained how the guidelines

failed adequately to account for the other factors upon which it

relied: the duration of the harassment, the power dynamics between

the appellant and his victims, and the special role of the

internet. And the court accompanied that explanation with

case-specific details curated from the record. These included the

appellant's "continuing 18-month campaign of harassment,

intimidation, and extortion against [Jane Doe A]"; the "demeaning,

3The appellant argues that the district court's reliance on
this factor was improper because "[t]here was no evidence in the
record about recent PTSD research or sexually-based trauma." This
argument misses the mark. Although the district court's statement
of reasons did briefly mention recent research "about the broad
spectrum of chronic harm that can result in sexually based trauma,"
there was no error in this statement. Moreover, the essence of
the statement was well-supported by Jane Doe A's victim-impact
statement and was a matter of common sense.

- 14 -
misogynistic and callous" nature of his conduct; and his use of

"multiple anonymous social media accounts."4 Despite the

appellant's protestations, none of these specific factors are

either inherent in his crimes of conviction or fully accounted for

by the guidelines. And this level of detail was adequate,

particularly considering the modest scope of the upward variance

(which increased the appellant's sentence by less than fifteen

percent).

4The appellant cites two instances in which he claims the
district court overstated the scope of his conduct. First, he
notes that the court at one point stated that the appellant
subjected "his victims" to humiliation for "months on end," even
though the record shows that he harassed only one victim for many
months. Second, he notes that the court referred at one point to
"hundreds of videos and thousands of pictures" that the appellant
possessed, to which the government responded that he had "a more
limited set of data" than that.
Neither of these examples is sufficient to show that the
district court's sentencing decision was based on an erroneous
view of the record. Cf. Fed. Refinance Co. v. Klock, 352 F.3d 16,
28 (1st Cir. 2003) ("We have held before that a reasoned decision
should not be vacated merely because a lapsus linguae occurred.");
United States v. Zapata, 1 F.3d 46, 47 n.2 (1st Cir. 1993)
(disregarding district court's reference to incorrect version of
sentencing guidelines as lapsus linguae when court's calculations
otherwise tracked correct version). As to the first alleged error,
the district court's explanation of its sentence highlighted the
fact that the appellant subjected a singular "victim" to an
"18-month campaign of harassment, intimidation, and extortion."
Thus, we understand the decision to impose an upward variance as
predicated on the district court's accurate understanding of the
length of time over which the appellant traumatized Jane Doe A
specifically. As to the second alleged error, the exchange
identified by the appellant was subsequently corrected by the
government.

- 15 -
 That ends this aspect of the matter. For these reasons,

we disagree with the appellant's assertion that his sentence is

tainted by procedural error.

B

We turn next to the appellant's assault on the

substantive reasonableness of his sentence. Our review is for

abuse of discretion. See Holguin-Hernandez v. United States, 140

S. Ct. 762, 766 (2020).

"[T]he hallmarks of a substantively reasonable sentence

[are] 'a plausible sentencing rationale and a defensible result.'"

Díaz-Lugo, 963 F.3d at 157 (quoting United States v. Martin, 520

F.3d 87, 96 (1st Cir. 2008)). We have said before that "an adequate

explanation for an upward variance and a plausible rationale for

that variance are almost always two sides of the same coin."

United States v. Valle-Colón, 21 F.4th 44, 50 (1st Cir. 2021).

Since we already have concluded that the appellant's sentence was

adequately explained, see supra Part II(A)(2), our analysis of

substantive reasonableness focuses on the "defensible result"

element.

We recognize that "there is no perfect sentence." Del

Valle-Rodríguez, 761 F.3d at 177. Thus, we will validate an

upwardly variant sentence in the face of a claim of substantive

unreasonableness as long as the sentence falls within the "wide

universe of supportable sentencing outcomes." Id.

- 16 -
 In this case, we conclude that the district court did

not abuse its discretion by imposing a forty-two-month sentence.

As we have explained, see supra Part II(A)(2), several aspects of

the appellant's conduct were particularly egregious and not fully

accounted for by the sentencing guidelines. A five-month variance

from the top of the guideline sentencing range, when viewed in

relation to the nastiness of the appellant's conduct, was neither

disproportionate nor undeserved. Seen "in the real-world context

of the appellant's actions," Valle-Colón, 21 F.4th at 50, his

sentence falls comfortably within the "wide universe of

supportable sentencing outcomes," Del Valle-Rodríguez, 761 F.3d at

177.

The appellant demurs. He strives to convince us that

his case falls within the mine-run of cyberstalking cases and,

thus, that an upward variance is insupportable. See United States

v. Rivera-Berríos, 968 F.3d 130, 137 (1st Cir. 2020). We are not

persuaded.

To be sure, we previously have acknowledged "that a

sentencing court must indicate why the defendant's situation

differs from the mine-run of cases when basing an upward variance

on a factor already generally accounted for by the [guidelines]."

Del Valle-Rodríguez, 761 F.3d at 176. But the appellant is reading

the record through rose-colored glasses when he suggests that this

is an archetypical cyberstalking case. As is evident from the

- 17 -
record and the district court's thoughtful explanation of the

sentence, several aspects of the appellant's conduct were

especially egregious. These factors, collectively, distinguish

this case from the mine-run of cyberstalking cases. The long

duration of Jane Doe A's harassment (eighteen months), the

degrading sexual acts that the appellant coerced Jane Doe A into

performing, and the fact that the appellant was also convicted of

extortion are prime examples. When the real-world context of the

appellant's conduct is factored into the mix, the upwardly variant

sentence imposed by the district court is "readily defensible."

Valle-Colón, 21 F.4th at 50.

Our assessment is unchanged by the appellant's

comparison of this case to two cyberstalking cases that he

characterizes as mine-run. See United States v. Cardozo, 68 F.4th

725, 730-31 (1st Cir. 2023); United States v. Ackell, 907 F.3d 67,

70-71 (1st Cir. 2018). The substantive reasonableness of a

sentence in a given case depends on the factual record before the

sentencing court, and the facts of the cases proffered by the

appellant are so removed from the facts of the appellant's case

that the sentencing outcomes in the proffered cases have no bearing

on the outcome here. We explain briefly.

In Ackell, the defendant received a within-the-range

sentence of thirty-three months for conduct that, unlike the

appellant's, did not involve the solicitation of live sex acts,

- 18 -
more than one victim, or a conviction for extortion. 907 F.3d at

70-71. And in Cardozo, the defendant received a within-the-range

sentence of seventy months based on an entirely different guideline

range. 68 F.4th at 730-31; see United States v. Cardozo, Nos.

20-1318, 20-1398, 2021 WL 3771818, at *2 (1st Cir. Aug. 25, 2021)

(per curiam).

The appellant also compares his case to some of those in

which we previously affirmed upwardly variant sentences on what he

argues are more flagrant facts. The premise of the argument misses

the point. As we have just said, assessment of the substantive

reasonableness of a sentence requires close attention to the

factual record before the district court. The same degree of

attention is required as to other cases said to be comparators,

which involve sentences for convictions under various sections of

the cyberstalking statute, see 18 U.S.C. § 2261A. An obvious

distinction between this case and the cases cited by the appellant

is that this case involved not only cyberstalking but also

extortion and interstate threats of injury to victims'

reputations. And for other reasons, too, the cases that the

appellant cites are inapposite: all of them involved larger

deviations from the applicable guideline sentencing range and

significantly longer sentences. See United States v. Lee, 790

F.3d 12, 16, 19 (1st Cir. 2015) (affirming 100-month sentence above

guideline range of fifty-one to sixty-three months); United States

- 19 -
v. Sayer, 748 F.3d 425, 436-37 (1st Cir. 2014) (affirming

sixty-month sentence above guideline range of thirty-seven to

forty-six months); United States v. Walker, 665 F.3d 212, 232-34

(1st Cir. 2011) (affirming 137-month sentence above guideline

range of sixty-three to seventy-eight months).

To say more about the length of the appellant's sentence

would be to paint the lily. We hold, without serious question,

that the appellant's sentence is substantively reasonable.

C

This leaves the appellant's challenge to one of the

conditions of his supervised release. That condition, which was

recommended by the probation department in the PSI Report and

imposed by the district court, reads:

You are prohibited from being employed in any
capacity that may cause you to come in direct
contact with children except under
circumstances approved in advance by a
supervising probation officer. In addition,
you must not participate in any volunteer
activities that may cause you to come in
direct contact with children, except under
circumstances approved in advance by the
probation officer. Contact is defined as any
transaction occurring face to face, over the
telephone, via mail, over the Internet, and
any third-party communication.

The appellant's counsel objected to this condition at

the October 26 sentencing hearing "because the specifics of this

case don't deal with minors." The government replied that "while

the specific charges in this case do not relate to minors, there

- 20 -
is at least an allegation in the complaint, so on the record, of

communications between [the appellant] over Instagram using one of

his anonymous accounts and at least one minor female." At this

juncture, the court invited a response, and the appellant's counsel

stated:

I think maybe, then, if we could make it more
specific to online contact, rather than the
type of restrictions that might relate to just
contact out in the public. With all minors
seems overly restrictive given the type of
behavior in this case. So that would be my
suggestion.

After the government expressed its unwillingness to

accept the proposed modification, the court asked whether the

appellant envisioned any particular circumstances in which this

condition would pose an issue. The appellant's counsel rejoined,

"I guess I'm just thinking about all the instances where — where

there could be inadvertent contact that's not — that wouldn't be

of concern based on his prior behavior, which is limited to online

behavior."

Before us, the appellant argues that the challenged

condition is "overly restrictive and was imposed without adequate

explanation or basis" because it rested solely on an allegation in

the criminal complaint that he used one of his anonymous social

media accounts to send non-sexual messages to a user who had

represented herself to him as a fifteen-year-old girl. The

complaint references two messages from this exchange: one in which

- 21 -
the appellant said that he was "Gary. That's the real name" and

another in which he said that he was a master's student at a "top

5 university."

We agree with the government that the appellant's

current argument was not preserved. Although the appellant

initially objected to the challenged condition "because the

specifics of this case don't deal with minors," he changed his

tune when the government noted his exchange with the

fifteen-year-old social media user. From that point forward, he

did not press his objection any further. Nor did he provide any

additional context to indicate that the exchange was more innocent

or less probative than depicted by the government. Instead, the

appellant's counsel set off in a different direction, suggesting

that the challenged condition should be limited to online contact

with minors. We give this suggestion its plain meaning and regard

it as an acknowledgement that some restriction of the appellant's

association with minors was appropriate. Counsel's later comment

that the proposed condition could encompass instances of contact

"that wouldn't be of concern based on [the appellant's] prior

behavior, which is limited to online behavior," buttresses the

inference that the appellant was objecting to the challenged

condition only to the extent that it reached behavior other than

online behavior.

- 22 -
 A party cannot preserve a claim of error by switching

horses in midstream, that is, by making one claim below and a

different claim on appeal. See United States v. Wallace, 461 F.3d

15, 35 n.11 (1st Cir. 2006). Here, the basis of the appellant's

claim below differs materially from the basis of his current claim

of error. We read the latter as contending that the challenged

condition is not justified because the appellant "has never

committed a crime involving a minor, there are no allegations that

he interacted inappropriately with a minor, and the government did

not argue that he posed a danger to children." This is a new claim

and, thus, not preserved. See United States v. Hassan-Saleh-

Mohamad, 930 F.3d 1, 6 (1st Cir. 2019) ("To preserve a claim of

error for appellate review, an objection must be sufficiently

specific to call the district court's attention to the asserted

error." (quoting United States v. Soto-Soto, 855 F.3d 445, 448 n.1

(1st Cir. 2017))).

Given the disconnect between the claim advanced below

and the claim advanced on appeal, our review is for plain error.

See id. Plain error review requires "four showings: (1) that an

error occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." Duarte, 246 F.3d at 60. "A party who

claims plain error must carry the devoir of persuasion as to all

- 23 -
four of these elements." United States v. Pinkham, 896 F.3d 133,

136-37 (1st Cir. 2018).

There is no cause for us to tarry. The district court

may impose a condition of supervised release without an explicit

explanation of its rationale so long as the court's reasoning can

be deduced from the record. See United States v. Cueto-Núñez, 869

F.3d 31, 40 (1st Cir. 2017). This is such a case. As elucidated

in the colloquy concerning the imposition of the condition, the

appellant had contacted a minor female using the same account that

he had used to prey on women. He boasted to her about being a

master's student at a "top 5 university." Given the context of

the appellant's crimes, this exchange conveys a risk that he might

target children. As such, the justification for the condition

restricting contact with children is apparent.

Against this backdrop, we turn to the plain error

framework. Our inquiry starts — and ends — at the second step of

the framework. We discern no clear or obvious error and, thus, no

plain error.

Although the appellant asserts that the challenged

condition is unrelated to his offenses of conviction, the

sentencing guidelines "do not limit district courts to

consideration only of the facts of the crime charged." United

States v. Goodwin, 866 F.3d 478, 481 (1st Cir. 2017) (quoting

United States v. York, 357 F.3d 14, 19-20 (1st Cir. 2004)); see

- 24 -
United States v. Prochner, 417 F.3d 54, 62-65 (1st Cir. 2005)

(upholding supervised release conditions involving sex offender

treatment and limiting defendant's contact with minors even though

"the record contain[ed] no direct evidence that [the defendant

had] engaged in inappropriate conduct with minors"). Instead, the

district court may impose any condition of supervised release that

bears a reasonable relationship to at least one of "(1) the

defendant's offense, history, and characteristics; (2) the need to

deter the defendant from further criminal conduct; (3) the need to

protect the public from further crimes by the defendant; and (4)

the effective educational, vocational, medical, or other

correctional treatment of the defendant." York, 356 F.3d at 20.

In this instance, the record makes manifest that the

appellant, using one of the same anonymous accounts that he used

to harass his victims and seek sexually explicit content, exchanged

messages with a social media user who had represented herself as

a fifteen-year-old girl. Even though this exchange was not overtly

sexual in content, we cannot envision a scenario in which an adult

with good judgment about how to interact with children would find

it appropriate to reach out to a minor in this context. Relying

on this evidence, the district court supportably could have

believed that the appellant — if unrestrained — might pose a threat

to children and that restricting his interactions with minors in

certain settings was reasonably related to the goal of protecting

- 25 -
the public from future crimes at the appellant's hands. See United

States v. Pabon, 819 F.3d 26, 31 (1st Cir. 2016) (explaining that

supervised release conditions restricting association with minors

"may be proper where the defendant" had committed a sex offense

against minors "or where the defendant's conduct otherwise

indicates an enhanced risk to minors" (emphasis in original)).

Nor does the challenged condition involve "any greater

deprivation of liberty than is reasonably necessary for the

purposes of supervised release." Prochner, 417 F.3d at 64. As a

general matter, we have held that conditions restricting

association with minors "are sufficiently circumscribed when they

do not place an outright ban on association with minors, but only

curtail association, such as by requiring pre-approval by the

probation officer or another authority, or by operating in limited

contexts." Pabon, 819 F.3d at 31-32 (internal quotation marks and

citations omitted). The case at hand fits neatly into this

paradigm. The challenged condition operates only in the limited

conditions of employment and volunteer work — and only requires

the appellant to secure advance approval from a probation officer

for such activity if it would put him in direct contact with

children.

The cases cited by the appellant are of little help

because they involve different factual backgrounds and the

conditions challenged there were considerably more sweeping than

- 26 -
the condition at issue here. For example, in United States v.

Fey, the defendant was convicted of failing to register as a sex

offender under the Sex Offender Registration and Notification Act,

18 U.S.C. § 2250(a). 834 F.3d 1, 2 (1st Cir. 2016). The district

court imposed a supervised release condition prohibiting "direct

or indirect contact with children under the age of 18, except in

the presence of a responsible adult who is aware of the nature of

the defendant's background and current offense, and who has been

approved by the [probation office]." Id. at 3. We rejected that

condition, concluding that the defendant's prior sex offense was

remote (having occurred in 1999) and that the condition was overly

broad and unsupported by the record. See id. at 4. Here, by

contrast, the condition is limited to particular settings and to

direct contact, and the evidence of the appellant's posing

potential risk to children is recent.

United States v. Ramos is equally unavailing. 763 F.3d

45 (1st Cir. 2014). There, the defendant, who was "recorded on

video engaging in sex acts with a fourteen-year-old girl," was

convicted of "aiding and abetting the production of child

pornography" in violation of 18 U.S.C. § 2251(a). Id. at 49-50.

On appeal, he challenged a condition of supervised release barring

"any possession or use, anywhere, of a computer, or of a device

with the capability to access the internet" without "prior approval

from probation." Id. at 61. We rejected the proposed condition,

- 27 -
in part, because it was too broad "given the importance of the

internet to daily life, and the availability of narrowly tailored

monitoring tools." See id. at 61-62. We note, moreover, that the

condition in Ramos was significantly more restrictive than the

condition that is challenged here.

Notably, none of these cases support a conclusion that

the challenged condition "flout[s] 'controlling precedent.'"

United States v. McCullock, 991 F.3d 313, 322 (1st Cir. 2021)

(quoting United States v. Morosco, 822 F.3d 1, 21 (1st Cir. 2016)).

The absence of such a showing is a telltale indication that the

appellant has failed to identify a clear or obvious error. See

United States v. Rabb, 5 F.4th 95, 101 (1st Cir. 2021) (stating

that showing of clear or obvious error requires that "a party must

show that the error is contrary to existing law"); United States

v. Jones, 748 F.3d 64, 69-70 (1st Cir. 2014) (stating that showing

of clear or obvious error requires that proponent must show that

error is "indisputable"). Discerning no plain error, we reject

the appellant's challenge to the disputed supervised release

condition.

III

We need go no further. For the reasons elucidated above,

the district court's judgment is

Affirmed.

- 28 -