United States v. Osinger, 11–50338.

Citation753 F.3d 939
Decision Date04 June 2014
Docket NumberNo. 11–50338.,11–50338.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Christopher OSINGER, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

753 F.3d 939

UNITED STATES of America, Plaintiff–Appellee,
v.
Christopher OSINGER, Defendant–Appellant.

No. 11–50338.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted July 10, 2013.
Filed June 4, 2014.


[753 F.3d 940]


Michael K. Cernyar, Long Beach, CA, for Defendant–Appellant.

André Birotte Jr., United States Attorney, Robert E. Dugdale, Chief Criminal Division, Ryan White (argued), Assistant United States Attorney, Los Angeles, CA, for Plaintiff–Appellee.


Appeal from the United States District Court for the Central District of California, Otis D. Wright, District Judge, Presiding. D.C. No. 2:10–cr–00758–ODW–1.
Before: SUSAN P. GRABER, JOHNNIE B. RAWLINSON, and PAUL J. WATFORD, Circuit Judges.

Opinion by Judge RAWLINSON; Concurrence by Judge WATFORD.

OPINION

RAWLINSON, Circuit Judge:

Appellant Christopher Osinger (Osinger) challenges his conviction for stalking in violation of 18 U.S.C. § 2261A. Osinger asserts a facial challenge to 18 U.S.C. § 2261A as unconstitutionally vague on its face and as applied to his conduct.

[753 F.3d 941]

Osinger also maintains that the district court's sentence of 46 months' imprisonment was unreasonable because his acceptance of responsibility and a sentencing disparity warranted a more lenient sentence. We affirm Osinger's conviction and sentence.

I. BACKGROUND

Osinger was indicted for engaging in a course of harassing and intimidating conduct in violation of 18 U.S.C. §§ 2261A(2)(A) and 2261(b)(5). The indictment alleged that Osinger sent several threatening and sexually explicit text messages, emails, and photographs of V.B., a former girlfriend, to V.B., as well as to her co-workers and friends. The indictment also alleged that Osinger “used the Internet to create a Facebook page in a name close to V.B.'s name” to post “suggestive and explicit photos of V.B.” and “demeaning statements, purportedly made by V.B. ...”

Prior to trial, Osinger sought dismissal of the indictment, asserting that 18 U.S.C. § 2261A(2)(A) was unconstitutionally vague. The district court ruled that 18 U.S.C. § 2261A(2)(A) was not unconstitutionally vague and denied Osinger's motion to dismiss the indictment.

At trial, V.B. testified that she was introduced to Osinger through a mutual friend. Osinger subsequently became V.B.'s roommate and they became romantically involved. During their nine-month relationship, V.B. allowed Osinger to take nude photographs of her.

Osinger told V.B. that he had divorced his wife in 2005. V.B. eventually moved out of the apartment she shared with Osinger and ended their relationship when she discovered that Osinger was still married. V.B. did not provide Osinger with her new address because she “didn't want him to contact [her].” Osinger contacted V.B.'s sister-in-law and told her that he knew where V.B. lived and that “he wanted to be with [V.B.].” According to V.B., Osinger “repossessed cars” and “could easily find addresses ...” After Osinger spoke with V.B.'s sister-in-law, V.B. telephoned Osinger because she “wanted him to stop looking for [her] family or friends, and [she] wanted to hear what he had to say.”

Osinger later came to V.B.'s new residence in an attempt at reconciliation. Osinger arrived in the “early hours of the morning, like 1, 2 in the morning.” V.B. did not answer when he knocked on her window or door because she “didn't want to speak to him.” Osinger also “came to [her] work a few times.”

When V.B. eventually agreed to meet with Osinger, he told her that he was getting a divorce. Osinger left copies of divorce papers in V.B.'s mailbox, but V.B. doubted their authenticity because they lacked the signature of Osinger's wife or “any court stamps.” V.B. informed Osinger that she was not interested in continuing their relationship and moved in with her sister. V.B. did not tell Osinger that she was living with her sister and did not provide him with the address. Nevertheless, Osinger called and texted V.B. and eventually came to her sister's home. V.B. informed him that she was not interested in reviving their relationship.

After V.B. received an offer for a new position in California, she informed Osinger that she was leaving Illinois. Osinger told her that “he would do anything for [them] to be back together,” and was upset that V.B. left without saying goodbye. V.B. did not provide her California address to Osinger.

Following her relocation to California, V.B. continued to receive text messages from Osinger, including messages that he

[753 F.3d 942]

wanted “one last chance.” V.B. contacted Osinger when he stated that he would move to California. V.B. told Osinger “to stop texting [her], to stop calling ...”

V.B. continued to receive text messages from Osinger despite her remonstrations. Considering the content of the messages, V.B. inferred that Osinger had sexually explicit videos of her. V.B. construed the text messages as “a threat.” She subsequently received a telephone call from an ex-boyfriend who informed her that “someone had posted a Facebook page with nude pictures of [V.B.] and horrible content ...” When V.B. viewed the Facebook page, she recognized the photographs as ones that Osinger had taken of her. V.B. feared that her family might see the photographs, as one of her cousins had already accepted the Facebook posting.

V.B. contacted Carlos Enriquez, her supervisor, to assist her in removing the Facebook page. V.B. was “crying hysterically” and “could not believe what [Osinger] had done, and [she] was just shocked.” Enriquez removed the Facebook page and informed V.B. that he had been contacted by another employee who had received “an e-mail through his [company] web e-mail with nude pictures of [V.B.].” V.B. received a telephone call from a former co-worker in Chicago that “he had also received an e-mail with nude pictures.”

V.B. eventually reported the incidents to the Torrance Police Department because she “was scared. [She] did not know what else [Osinger] was going to try to do.” V.B. ultimately obtained a restraining order against Osinger.

Enriquez corroborated V.B.'s testimony regarding her emotional state and his assistance in removing the Facebook page. Enriquez stayed with V.B. because she “was really bad, still shaking and kind of ... desperate.” Enriquez also received an email at work “with some pictures and with really bad content ...” Enriquez contacted company headquarters to have the email blocked. When Enriquez informed V.B. about the email, she started to cry and shake.

Jason Roberts, V.B.'s former co-worker in Chicago, testified that he “received some pretty disturbing e-mails” on his corporate account. Roberts informed V.B., who “was very, very disturbed, very upset....”

Darek Pawelek, V.B.'s ex-boyfriend, testified that he received a Facebook invite that he thought was from V.B., although the name was spelled differently. When Pawelek informed V.B. of the Facebook page's content, “[s]he got really upset. She started crying, saying things like [she didn't] know why he is doing this. Why won't he leave [her] alone....”

The jury found Osinger guilty of stalking in violation of 18 U.S.C. §§ 2261A(2)(A) and 2261(b)(5) as alleged in count one of the indictment.

At sentencing, Osinger objected to the recommendation from the probation officer that a downward departure for acceptance of responsibility was unwarranted. Osinger also asserted that a more lenient sentence was supported by the 27–month sentence of another defendant convicted of violating 18 U.S.C. § 2261A. Osinger requested a six-month prison sentence and twelve months in a halfway house.

The district court calculated a base offense level of 18, an adjusted offense level of 22, and a guidelines range of 46 to 57 months' imprisonment. The district court rejected Osinger's request for a downward adjustment premised on acceptance of responsibility. After considering the requisite 18 U.S.C. § 3553(a) factors, the district court sentenced Osinger to 46 months' imprisonment, at the low end of

[753 F.3d 943]

the guidelines range, and three years of supervised release.

Osinger filed a timely notice of appeal.

II. STANDARDS OF REVIEW

“A challenge to the constitutionality of a statute is reviewed de novo. United States v. Berry, 683 F.3d 1015, 1020 (9th Cir.2012) (citation omitted). “We also review de novo when a criminal statute is challenged for vagueness.” Id. (citation omitted).

“We review a sentence for both procedural error and substantive reasonableness....” United States v. Joseph, 716 F.3d 1273, 1276 (9th Cir.2013) (citation omitted). “We review for clear error the district court's finding that [Osinger] did not accept responsibility for his crime.” United States v. Ramos–Medina, 706 F.3d 932, 936 (9th Cir.), as amended, cert. denied,––– U.S. ––––, 134 S.Ct. 64, 187 L.Ed.2d 52 (2013) (citation omitted).

III. DISCUSSIONA. Constitutionality of 18 U.S.C. § 2261A1,2
1. Facial Challenge

Osinger contends that the version of 18 U.S.C. § 2261A in effect when he was convicted is facially unconstitutional because it prohibits speech protected by the First Amendment. Osinger also argues that 18 U.S.C. § 2261A(2)(A) is overly broad because it does not define “substantial emotional distress” or “harassment.” 3

“In a facial challenge, a statute is unconstitutionally vague if it fails to provide

[753 F.3d 944]

a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement....” United States v. Harris, 705 F.3d 929, 932 (9th Cir.), as amended, cert. denied,––– U.S. ––––, 133 S.Ct. 1510, 185 L.Ed.2d 561 (2013) (citation and internal quotation marks omitted). Although we have not extensively addressed the First Amendment implications of 18 U.S.C. § 2261A(2)(A), other circuits have rejected similar facial challenges.

For example, in United States v. Petrovic, 701 F.3d 849 (8th Cir.2012), the Eighth Circuit observed that “[a]n overbreadth challenge ... will rarely succeed...

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