United States v. Christopher Osinger
2014 U.S. App. LEXIS 10377
| 9th Cir. | 2014Background
- Osinger was convicted of interstate stalking under 18 U.S.C. § 2261A(2)(A) and § 2261(b)(5) based on a course of harassing conduct toward V.B.
- Indictment alleged Osinger sent threatening, sexually explicit texts, emails, and posted nude photos via a false Facebook page to V.B. and her coworkers.
- Osinger repeatedly confronted V.B. in Illinois, later contacting her after she moved to California, including visits, calls, and texts.
- A Facebook page with V.B.’s images and emails to coworkers were used by Osinger to intimidate and cause distress; V.B. obtained a restraining order.
- At sentencing, the district court denied a downward adjustment for acceptance of responsibility and imposed a 46-month sentence within the guidelines range.
- On appeal, Osinger challenged the statute’s vagueness and applicability to his speech, and challenged the sentence as unreasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of § 2261A(2)(A) on vagueness | Osinger contends § 2261A(2)(A) is facially vague and overbroad | Osinger argues it fails to define harassment and substantial emotional distress and can chill speech | Statute not unconstitutionally vague or overbroad |
| As-applied challenge to § 2261A(2)(A) | Osinger argues his speech is protected and the statute improperly criminalizes it | Speech was integral to criminal conduct and not protected | Speech integral to criminal conduct exception applies; speech not protected |
| Downward adjustment for acceptance of responsibility | Osinger should receive a two-level downward adjustment | Osinger showed equivocal contrition; not genuine acceptance | District court did not err; no acceptance of responsibility adjustment |
| Sentencing disparity argument | Osinger notes sentencing disparity with a more lenient rival case | Not similarly situated; Osinger's criminal history justifies the sentence | No reversible error; sentence at low end of guideline range reasonable |
Key Cases Cited
- Petrovic, 701 F.3d 849 (8th Cir. 2012) (statute targets conduct, not protected speech; occasional First Amendment concerns remedied as-applied)
- Shrader, 675 F.3d 300 (4th Cir. 2012) (as-applied challenges fail where conduct shows intent to cause distress)
- Meredith, 685 F.3d 814 (9th Cir. 2012) (speech integral to criminal conduct exception can negate First Amendment protection)
- Kilbride, 584 F.3d 1240 (9th Cir. 2009) (vagueness factors include notice, enforcement, and chilling effects)
- Dhingra, 371 F.3d 557 (9th Cir. 2004) (conviction reversal occurs when absence of genuine contrition is shown)
- Bagdasarian, 652 F.3d 1113 (9th Cir. 2011) (true-threat assessment required for speech statutes; not applicable to § 2261A)