United States of America v. Shawn Sayer

Boston, MA - Criminal defense lawyer represented defendant with a one count of cyberstalking charge.

We briefly summarize the relevant facts and procedural course of this case.



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



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.

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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."

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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.

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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. MárquezGarcía, 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. ContrerasDelgado, 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.

For the reasons expounded above, Sayer's revocation

sentence is affirmed.



Affirmed