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.
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.
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 -