United States v. Sayer ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-2065
UNITED STATES OF AMERICA,
Appellee,
v.
SHAWN SAYER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Thompson, Circuit Judges.
William S. Maddox, on brief for appellant.
Renée M. Bunker, Assistant United States Attorney, Appellate
Chief, and Halsey B. Frank, United States Attorney, on brief for
appellee.
February 22, 2018
TORRUELLA, Circuit Judge. In 2012, appellant Shawn
Sayer ("Sayer") pled guilty to one count of cyberstalking in
violation of 18 U.S.C. §§ 2261A(2) and 2261(b)(5). He commenced
his supervised release term in 2016, but it was revoked in 2017
because he violated some of his conditions. On appeal, Sayer
contends that the district court's upwardly-variant sentence
following revocation is procedurally and substantively
unreasonable. Moreover, he challenges the district court's
imposition of a supervised release term in addition to the
statutory maximum term of imprisonment upon revocation.1 After
careful review, we affirm.
I. Background
We briefly summarize the relevant facts and procedural
course of this case.2
After Jane Doe3 ended her relationship with Sayer in
January 2006, Sayer stalked and harassed her for various years,
1 The maximum prison term that may be imposed following revocation
is set forth at 18 U.S.C. § 3583(e)(3) and is based on the class
of the original offense.
2 We draw the uncontested facts underpinning Sayer's original
sentence from this court's opinion affirming that sentence. See
United States v. Sayer, 748 F.3d 425 (1st Cir. 2014). The facts
regarding Sayer's conduct while on supervised release derive from
the Probation Office's Revocation Report, which the district court
adopted in its entirety with no objection from Sayer to the
information therein.
3 As before, we refer to Sayer's victim as "Jane Doe" to preserve
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causing her to seek a protective order against him in state court.
United States v. Sayer, 748 F.3d 425, 428 (1st Cir. 2014). In the
fall of 2008, Sayer started using the internet to induce random
third parties to harass Jane Doe. Id. After several unknown,
"'dangerous'-looking men" arrived at Doe's house in Maine in
October 2008 "seeking 'sexual entertainment,'" she discovered an
ad in the "casual encounters" section of Craigslist that showed
pictures of her in lingerie, which Sayer had taken while they were
dating. Id. The ad described a list of sexual acts she was
supposedly willing to perform and provided her address. Id. Jane
Doe had not posted the ad, nor authorized Sayer to do so. Id.
The unwanted visits from unknown men persisted until
Jane Doe moved to her aunt's house in Louisiana and changed her
name, seeking to avoid Sayer's harassment. The visits stopped
until August 2009, when, once again, an unknown man showed up at
her aunt's home in Louisiana, referring to Doe by her new name,
claiming that he had met her over the internet, and seeking a
sexual encounter. Id. Jane Doe later found: 1) videos of herself
and Sayer engaged in sexual acts on various pornography websites
detailing her name and current Louisiana address; (2) a fraudulent
Facebook account including sexually explicit pictures of her; and
her privacy. Sayer, 748 F.3d at 428 n.1. For the same reason,
we will refer to Sayer's second victim as "M.G."
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(3) a fake account on another social network, Myspace, which
provided both her old and new names, her Louisiana address, and
links to pornography sites hosting sex videos of her. Id. at 428-
429. After police searched Sayer's home in June 2010, a forensic
analysis of his computer showed that between June and November
2009, Sayer had created "numerous fake profiles" on Yahoo!
Messenger using a variation of Jane Doe's name. Id. at 429. In
many cases, "Sayer, posing as Jane Doe, chatted with men online
and encouraged them to visit [her] at her home in Louisiana."4
Id.
In 2012, Sayer pled guilty to cyberstalking. 5 The
district court imposed a prison term of sixty months, the statutory
maximum, to be followed by three years of supervised release.
4 Jane Doe was forced to return to Maine in November 2009, as the
men that Sayer sent to the Louisiana residence scared her aunt and
cousin, with whom she was staying. Id.
5 The indictment encompassed conduct from "about July 2009, the
exact date being unknown, until about November 2009," and alleged
that the defendant:
with the intent to injure, harass, and cause substantial
emotional distress to a person in another state, namely,
Louisiana, used facilities of interstate or foreign
commerce, including electronic mail and internet
websites, to engage in a course of conduct that caused
substantial emotional distress to the victim and placed
her in reasonable fear of death or serious bodily injury.
-4-
Sayer commenced his supervised release in February 2016.
During the initial supervised release orientation, Sayer
identified several goals, including finding full-time employment,
saving money, and purchasing a truck. He worked in the school
lunch program for the City of Portland while searching for
carpentry-related employment. 6 In May 2016, Sayer secured
employment with a construction company in the carpentry industry.
In June 2016, the Probation Office filed a petition to
modify Sayer's supervised release conditions to add a requirement
that he participate in a Computer and Internet Monitoring Program
("CIMP"), which involved partial or full restriction of his use of
computers and the internet and required him to submit to
unannounced searches of his computer, storage media, and
electronic or internet-capable devices. Despite Sayer's
opposition, the district court imposed the CIMP condition,
explaining that it had inadvertently omitted it at the time of
Sayer's original sentencing but that it was warranted considering
the "nature and seriousness" of Sayer's underlying offense.
During his supervised release term, Sayer began a
relationship with M.G. On October 25, 2016, Sayer called the
6 He secured this employment while serving the final part of his
custodial sentence (pre-release) in the Pharos House Residential
Reentry Center.
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Probation Officer to inform that "things [had gone] sour" with
M.G. While Sayer insisted that M.G. "never explicitly asked him
to not contact her," he acknowledged that she had blocked
communications with him on Facebook and ignored multiple text
messages. The Probation Officer encouraged him to stop contacting
M.G. During a meeting with Sayer days later, the Probation Officer
brought up Sayer's communications with M.G., emphasizing that
Sayer was "exhibiting at risk communication that reached an
obsessive level." The Probation Officer informed Sayer that his
internet access would be restricted for a while to allow the
Probation Office to investigate the extent of his communication
with M.G.
On November 18, 2016, M.G. denied any issues of
harassment and said she and Sayer were "working things out."
Hence, on November 29, 2016, the Probation Officer informed Sayer
that he would restore his internet access, based on the results of
the investigation. The Probation Officer later discovered that
Sayer continued to use the internet during his period of
restriction as the software installed by the Probation Office had
failed to block his access. When confronted, Sayer said that
although he had felt "shocked" when he was able to access the
internet after being told he would not be able to, he just "went
along with it."
-6-
In a meeting on January 4, 2017, Sayer and the Probation
Officer once again discussed Sayer's communications with M.G., as
she had recently requested he "leave her alone." Sayer insisted
that his multiple messages were "his way of 'helping' her through
periods of depression." He seemed "very bothered" by the breakdown
of his relationship and expressed concern for an iPhone and iPad
that he had let M.G. borrow and she had not returned. The
Probation Officer suggested a mental health assessment, but Sayer
said he was "not really that upset." During this meeting, the
Probation Officer also discussed nude photos of M.G. in Sayer's
cellphone, some in which M.G. was "not looking at the camera and
it [was] unclear how aware she [was]." The Probation Officer
instructed Sayer to inform M.G. that his cellphone was monitored
and other people had access to her photos.
In mid-January 2017, the Probation Office discovered a
GPS tracker application in Sayer's cellphone, which Sayer admitted
to connecting to the iPad he had lent M.G.7 The following month,
Sayer scheduled a mental health assessment as instructed by the
Probation Office, which he referred to as "ridiculous."
7 Sayer alleged that he installed the tracker because he wanted
to know whether M.G. had mailed his iPad back. He provided
evidence that it had been disabled. From the Revocation Report,
it is unclear whether Sayer had previously disabled the tracker of
his own volition, or whether he had only done so after prodding by
the Probation Office.
-7-
In late February 2017, M.G. sought a no contact order
regarding Sayer from the Ellsworth, Maine Police Department, and
as a result Sayer was verbally instructed to cease all
communications with her. On May 8, 2017, M.G. contacted the
Probation Office to inform that Sayer had been obsessively
contacting her via phone and email. She reported that he called
from different numbers and was able to mask his phone number to
appear as though another contact was calling. She also reported
he emailed her from multiple accounts.
On May 23, 2017, the Probation Office filed a petition
to revoke Sayer's supervised release, alleging that Sayer had
violated the CIMP condition by opening and using a series of online
accounts without prior permission from Probation. Sayer waived
the preliminary revocation hearing, and the district court
scheduled the final revocation hearing for October 24, 2017. On
that day, Sayer waived the right to a hearing and admitted to
committing the violations. Specifically, Sayer admitted to: (1)
installing twenty-two "spoofing" applications on his phone, which
enabled him to place outgoing phone calls under the guise of a
different phone number, to call M.G.; (2) downloading twenty
unapproved messenger applications; (3) opening 4 different email
accounts, 3 of which were never reported to, nor approved by, the
Probation Office, and were used to send multiple messages to M.G.;
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and (4) creating two dating profiles appearing to resemble M.G.,
seeking to pose as a representation of her to find out if she was
dating other men.
Sayer also accepted the Probation Officer's Revocation
Report without any objection to its content, except for a complaint
that it omitted some "mutual" communications between M.G. and him.
Without any further objection from Sayer, the district court
adopted the Revocation Report in its entirety as findings in
support of the revocation sentence. While the Guidelines
Sentencing Range was five to eleven months, the court ultimately
varied upwards to impose a sentence of a twenty-four-month prison
term and twelve months of supervised release.
II. Discussion
"Appellate review of federal criminal sentences is
characterized by a frank recognition of the substantial discretion
vested in a sentencing court." United States v. Flores-Machicote,
706 F.3d 16, 20 (1st Cir 2013). We review sentencing decisions
under the United States Sentencing Guidelines ("U.S.S.G.") for
"reasonableness, regardless of whether they fall inside or outside
the applicable [Guidelines Sentencing Range]." United States v.
Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). Our "review
process is bifurcated: we first determine whether the sentence
imposed is procedurally reasonable and then determine whether it
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is substantively reasonable." United States v. Clogston, 662 F.3d
588, 590 (1st Cir. 2011).
A. Procedural Reasonableness of Sayer's Sentence
We must ensure that the district court did not commit
any "significant procedural error" to arrive at a sentence. Gall
v. United States, 552 U.S. 38, 51 (2007). Examples of this include
"failing to calculate (or improperly calculating) the [GSR],
treating the Guidelines as mandatory, failing to consider the [18
U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence-including an explanation for any deviation from the
Guidelines range." Flores-Machicote, 706 F.3d at 20 (alterations
in original) (quoting Gall, 552 U.S. at 51).
Preserved claims of sentencing error are generally
reviewed for abuse of discretion. United States v. Márquez-
García, 862 F.3d 143, 145 (1st Cir. 2017). However, when a
defendant fails to contemporaneously object to the procedural
reasonableness of a court's sentencing determination, we review
for plain error. See United States v. Ruiz-Huertas, 792 F.3d 223,
226 (1st Cir. 2015). Under the plain error standard, "an appellant
must show: '(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the [appellant's]
substantial rights, but also (4) seriously impaired the fairness,
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integrity, or public reputation of judicial proceedings.'"
Márquez-García, 862 F.3d at 145 (alterations in original)(quoting
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Sayer
did not raise his procedural reasonableness argument before the
sentencing court, so we review for plain error.8 See United States
v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
Sayer claims that the district court procedurally erred
by failing to adequately explain the rationale for its chosen
sentence. The revocation hearing transcript, however, refutes
Sayer's argument. The district court's remarks at sentencing made
clear that it considered the factors required by 18 U.S.C.
§ 3583(e), weighed them, and used its discretion to arrive at a
reasoned, defensible decision. The court primarily stressed three
factors in support of its variant sentence: (1) Sayer's criminal
8 Sayer argues that he properly preserved all of his arguments on
appeal. As the transcript of the revocation hearing reflects,
Sayer's attorney stated: "I would like to object to the upward
variance. I think that is necessary to preserve all of Mr. Sayer's
appeal rights." This is insufficient. "A general objection to
the procedural reasonableness of a sentence is not sufficient to
preserve a specific challenge to any of the sentencing court's
particularized findings. . . . [A]n objection must be sufficiently
specific to call the district court's attention to the asserted
error." United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st
Cir. 2017); see also United States v. Sosa-González, 900 F.3d 1,
4 (1st Cir. 2018) (finding "we object as to the sentence because
we believe it is unreasonable" to be insufficient to preserve a
procedural objection). In any event, even reviewed under the
abuse of discretion standard, Sayer cannot meet his burden.
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history and the similarity of Sayer's conduct on supervised release
to the conduct for which he had been convicted; (2) Sayer's
unwillingness to accept responsibility; and (3) the need to protect
the public from further crimes.
First, the court expressed that Sayer's behavior while
on supervised release "demonstrates that he has continued with the
same sort of resistance to authority and compulsive thinking that
resulted in his underlying cyberstalking conviction." It
explained that although Sayer's conduct while on supervision did
not "rise to the level" of the conduct for which he was originally
convicted, "it certainly hearken[ed] toward it." Moreover, the
court noted that Sayer had a Criminal History Category of III and
emphasized that "more important than that number is the nature of
his history," which is a:
chronic pattern of stalking . . . and behavior involving
violations of protective orders and bail orders which
. . . [all] paint[] a picture . . . of a defendant who
is absolutely resistant to court order, court
supervision and respecting the rule of law as it pertains
to . . . employing cell phones and the Internet to
interfere with others.
As to Sayer's unwillingness to accept responsibility,
the court emphasized that Sayer had described the Probation
Officer's order that he receive a mental health assessment as
"ridiculous" and that "today even I hear him blaming his
relationship with M.G. for his problems . . . as opposed to
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accepting full responsibility." Moreover, the court stressed the
effect of Sayer's conduct on others and explained: "[t]o some
degree the analogy to a drug addict is not appropriate. This is
not a situation where he is using illegal substances to his own
detriment only. This is a situation in which his behavior harms
others." Thus, the court ultimately concluded that: "an upward
variant sentence is essential, because I have before me a defendant
who cannot control his behavior after all this history and for
that reason poses what I regard to be a substantial risk of harm
to the public."
This explanation was adequate, more than enough to
defeat Sayer's procedural challenge under both the plain error and
abuse of discretion standards. Sentencing courts need not recount
every detail of their decisional processes; identification of the
"main factors behind [the] decision" is enough. United States v.
Vargas-García, 794 F.3d 162, 166 (1st Cir. 2015). And although
Sayer contends that the court did not sufficiently explain why it
rejected his arguments for a lower prison term, courts are not
required to specifically explain why they rejected a particular
defense argument in favor of a lower sentence. See id. at 167
(holding that while a "sentencing court may have a duty to explain
why it chose a particular sentence, it has 'no corollary duty to
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explain why it eschewed other suggested sentences'" (quoting
United States v. Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014))).
In any case, the court did explain that although it had
considered Sayer's progress while on supervised release, it
"pale[d] next to the continued absence of insight on his part as
to the type of thinking and the type of behavior which is unlawful
and is harmful, and it's harmful to other people, not just to him."
Hence, the district court's explanation of its variant sentence
was sufficient, and we discern no error, much less plain error.
B. Substantive Reasonableness of Sayer's Sentence9
"[I]f the sentence is procedurally sound, we then ask
whether the sentence is substantively reasonable." United States
v. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015). A sentence is
substantively reasonable so long as the sentencing court has
provided a "plausible sentencing rationale" and reached a
"defensible result." United States v. Martin, 520 F.3d 87, 96
(1st Cir. 2008). In assessing the substantive reasonableness of
a sentence, this court should "take into account the totality of
the circumstances, including the extent of any variance from the
Guidelines [Sentencing] [R]ange." United States v. Contreras-
Delgado, 913 F.3d 232, 243 (1st Cir. 2019) (quoting Gall, 552 U.S.
9 Sayer claims this issue should be reviewed for abuse of
discretion, and the government does not contest it.
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at 51). "[T]he greater the variance, the more compelling the
sentencing court's justification must be." United States v.
Vázquez-Vázquez, 852 F.3d 62, 67 (1st Cir. 2017) (quoting United
States v. Guzmán-Fernández, 824 F.3d 173, 178 (1st Cir. 2016)).
Sayer's violation while on supervised release was a
Grade C violation.10 Because Sayer had a Criminal History Category
of III, the Guidelines Sentencing Range of imprisonment was five
to eleven months. By imposing an imprisonment term of twenty-four
months on revocation, the district court varied upwards by thirteen
months. Sayer argues that his sentence is longer than necessary,
and therefore substantially unreasonable because the court: (1)
"failed to calibrate the decisional scales" by not accounting for
"obvious mitigating factors"; and (2) left no room for harsher
sentences for those with higher Criminal History Categories and
more serious violations.
Sayer's arguments are without merit. To begin with, the
district court clearly stated that it considered the sentencing
factors set forth in 18 U.S.C. § 3553(a), including "Sayer's
10 The Sentencing Commission's policy statement divides conduct
that violates conditions of supervision into three categories:
Grade A, B, and C violations. U.S.S.G. § 7B1.1(a). There are two
types of Grade C violations: "(A) a federal, state, or local
offense punishable by a term of imprisonment of one year or less;
or (B) a violation of any other condition of supervision."
U.S.S.G. § 7B1.1(a)(3)(emphasis added).
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personal history and characteristics" and "the need for the
sentence imposed to . . . avoid unwanted sentencing disparities."
See United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir.
2014) (noting that a judge's statement that he has considered all
of the § 3553(a) factors is entitled to significant weight).
Moreover, the court adopted the Revocation Report, which mentioned
the mitigating factors that Sayer refers to, as findings of fact
in support of the sentence that it would impose. Finally, the
district court even expressly mentioned the "progress" that Sayer
achieved while on supervised release, but ultimately concluded
that it "pale[d]" compared to his harmful thinking and behavior.
Hence, it is evident that the district court considered all the
factors it was required to.
In essence, then, Sayer's challenge is directed at the
sentencing judge's weighing of the factors that affect sentencing.
He understands that the district judge should have given certain
mitigating factors greater significance. However, although the
district court must consider a "myriad of relevant factors," the
weighing of those factors is "within the court's informed
discretion." Clogston, 662 F.3d at 593. Moreover, the reasons
cited by the district court and described above, including Sayer's
extensive criminal history and the seriousness of his offenses,
his proclivity upon release towards the type of conduct for which
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he had been convicted, his unwillingness to accept responsibility,
and the need to protect the public from further crimes, constitute
a "plausible rationale" for a "defensible" sentence. See Martin,
520 F.3d at 91, 98. And while Sayer argues that the sentence
imposed did not leave room for harsher sentences for those with
higher Criminal History Categories and more serious violations, it
is evident from the hearing transcript that the sentencing judge
considered Sayer's criminal history and the nature of his
violations to be serious enough to warrant the sentence imposed.
See Clogston, 662 F.3d at 592 ("There is no one reasonable sentence
in any given case but, rather, a universe of reasonable sentencing
outcomes."). Thus, considering the totality of the circumstances,
we find the district court's sentence to be substantively
reasonable and not an abuse of discretion. 11
C. Sayer's Additional Term of Supervised Release upon Revocation
Finally, Sayer argues for the first time on appeal that
the district court erred by imposing a term of supervised release
in addition to the statutory maximum term of imprisonment upon
revocation. He contends that because the court sentenced him to
11 We have reviewed the cases Sayer cited in his briefs and in a
post-argument letter submitted pursuant to Federal Rule of
Appellate Procedure 28(j), but they fail to persuade us to the
contrary. They are either distinguishable, lacking a record from
which the appellate court could have deciphered a sentencing
rationale, or inapposite.
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the statutory maximum imprisonment term on revocation, it could
not also impose an additional term of supervised release. He
bases this argument on the Probation Officer's erroneous
paraphrasing of U.S.S.G. § 7B1.3(g)(2) in the Revocation Report12
and several cited cases that imposed a statutory maximum sentence
on revocation but no additional term of supervised release.
The plain text of 18 U.S.C. § 3583(h) and U.S.S.G.
§ 7B1.3(g)(2) negates Sayer's position. Section 3583(h)
establishes that:
When a term of supervised release is revoked and the
defendant is required to serve a term of imprisonment,
the court may include a requirement that the defendant
be placed on a term of supervised release after
imprisonment. The length of such a term of supervised
release shall not exceed the term of supervised release
authorized by statute for the offense that resulted in
the original term of supervised release, less any term
of imprisonment that was imposed upon revocation of
supervised release.
(Emphasis added). U.S.S.G. § 7B1.3(g)(2) basically mirrors the
statute. Here, Sayer does not dispute that the maximum supervised
release term authorized for his original cyberstalking offense is
12 On page 5 of the Revocation Report, the Probation Officer
erroneously appears to suggest that supervised release can be
imposed upon revocation only if the term of imprisonment imposed
is "less" than the maximum term of imprisonment imposable upon
revocation. Nevertheless, the Probation Officer correctly stated
the calculation on the Revocation Report's page 4 when he explained
that "the term of supervised release that can be imposed upon
revocation is 36 months, less any imprisonment imposed for this
revocation."
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thirty-six months. According to Section 3583(h), the district
court could impose a second supervised release term as long as it
did not exceed the term of supervised release authorized for the
underlying conviction (i.e., thirty-six months), less the term of
imprisonment that was imposed upon revocation (i.e., twenty-four
months). As thirty-six minus twenty-four equals twelve, simple
arithmetic reveals that the new twelve-month supervised release
term does not exceed the maximum allowed upon revocation.
Finally, the fact that some district courts exercise
their discretion to impose only the maximum statutory imprisonment
term upon revocation, without a new supervised release term,13 does
not affect the district court's authority here to impose the
twelve-month supervised release term upon revocation. Thus, Sayer
has not been able to show any error in the district court's
imposition of his supervised release term on revocation.
III. Conclusion
For the reasons expounded above, Sayer's revocation
sentence is affirmed.
Affirmed.
13 See United States v. Márquez-García, 862 F.3d 143, 145 (1st
Cir. 2017), United States v. Alejandro-Rosado, 878 F.3d 435, 438
(1st Cir. 2017), United States v. Soto-Soto, 855 F.3d 445, 448
(1st Cir. 2017).
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