United States v. Sayer

916 F.3d 32

UNITED STATES of America, Appellee,

v.Shawn SAYER, Defendant, Appellant.

No. 17-2065

United States Court of Appeals, First Circuit.

February 22, 2019

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.

Before Howard, Chief Judge, Torruella and Thompson, Circuit Judges.

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 He commenced his supervised release term in 2016, but it was revoked in 2017 because he violated some of his conditions.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, 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 (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.

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 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."

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."

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.; 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 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...