United States v. Sayer
2014 U.S. App. LEXIS 8364
| 1st Cir. | 2014Background
- Sayer challenged the constitutionality of 18 U.S.C. § 2261A(2)(A) after pleading guilty to cyberstalking and receiving a 60-month sentence.
- Jane Doe, the victim, had a multi-year stalking/harassment history by Sayer, including online postings, fake profiles, and real-world encounters.
- Sayer used anonymous third parties and online ads to harass Jane Doe, leading to fear and substantial distress.
- The district court denied Sayer’s as-applied First Amendment challenge and held the statute not overbroad or void for vagueness.
- At sentencing, the court imposed an upward variance to the statutory maximum, rejecting a § 5K2.23 downward departure despite eligibility, and relied on factors including use of anonymous third parties and ongoing obsession.
- Sayer appeals the denial of the motion to dismiss and his above-Guidelines sentence; the panel affirms both conclusions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutional challenge to § 2261A(2)(A) as applied | Sayer argues the statute penalizes protected speech | Court should uphold statute as applied to conduct | As applied, statute constitutional (speech not protected when vehicle of crime) |
| Constitutional challenge to § 2261A(2)(A) on overbreadth | Statute overbroad, invalid for substantially protected speech | Overbreadth not shown given legit sweep | Not substantially overbroad; overbreadth claim fails |
| Constitutional challenge to § 2261A(2)(A) on vagueness | Vagueness/stringent notice required | Claim waived and insufficient separate argument | Vagueness claim waived; no separate argument proved on appeal |
| Discretionary nature of § 5K2.23 downward departure | District court should downward depart if eligible | Departure discretionary; no error in not downward departing | No abuse of discretion; court justified upward variance under 3553(a) |
| Use of cellmate’s statements at sentencing | Statements introduced without notice | Defense had notice; credibility issues resolved by court | Court did not err; statements properly considered with notice and credibility findings |
Key Cases Cited
- Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (U.S. 1949) (speech can be unprotected when it implements criminal conduct)
- O'Brien v. United States, 391 U.S. 367 (U.S. 1968) (tests for speech-plus-conduct regime applicability)
- Stevens v. Williams?, 559 U.S. 460 (U.S. 2010) (recognizes speech integral to criminal conduct is unprotected)
- United States v. Petrovic, 701 F.3d 849 (8th Cir. 2012) (upholds § 2261A(2)(A) as applied; communications may be unprotected)
- Bowker v. United States, 372 F.3d 365 (6th Cir. 2004) (overbreadth considerations for § 2261A)
- United States v. Shrader, 675 F.3d 300 (4th Cir. 2012) (vagueness analysis distinctions under First Amendment)