United States v. Leach

89 F.4th 189

UNITED STATES of America, Appellee, v. Gary E. LEACH, Defendant, Appellant.

No. 22-1878

United States Court of Appeals, First Circuit

December 21, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Angel Kelley, U.S. District Judge]

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.

Before Gelpí, Selya, and Lynch, Circuit Judges.

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 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 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 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 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 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 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 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,...