United States Court of Appeals

For the First Circuit

No. 22-1878

UNITED STATES OF AMERICA,

Appellee,

v.

GARY E. LEACH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Angel Kelley, U.S. District Judge]

Before

Gelpí, Selya, and Lynch,

Circuit Judges.

Christine DeMaso, Assistant Federal Public Defender, for 

appellant.

Karen L. Eisenstadt, Assistant United States Attorney, with 

whom Joshua S. Levy, Acting United States Attorney, was on brief, 

for appellee. 

December 21, 2023
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SELYA, Circuit Judge. Defendant-appellant Gary E. Leach

had a warped view of what it meant to have "fun." That warped 

view culminated in the appellant's convictions for cyberstalking 

and extortion. The appellant now challenges his upwardly variant 

sentence, contending that it is procedurally flawed, substantively 

unreasonable, and burdened by an unlawfully imposed condition of 

supervised release. Concluding that the appellant's arguments 

lack force, we affirm his sentence in all respects.

I

We briefly rehearse the relevant facts and travel of the

case. "Where, as here, a sentencing appeal follows a guilty plea, 

we glean the relevant facts from the change-of-plea colloquy, the 

unchallenged portions of the presentence investigation report (PSI 

Report), and the record of the disposition hearing." United States

v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009). 

At various times during 2019 and 2020, the appellant

attempted to solicit video performances of a sexual nature from at 

least a dozen Instagram users. We summarize succinctly his 

harassment of two of those users (whom we shall call Jane Doe A 

and Jane Doe B) — harassment that formed the basis of his 

convictions for cyberstalking and extortion. 

In October of 2019, the appellant, using an Instagram 

alias, convinced Jane Doe A to participate in video calls in which 
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she would undress and perform various sexual acts. In exchange, 

the appellant agreed to pay her for her performances.

The appellant instructed Jane Doe A to show her face on 

camera during these calls, and he recorded one or more of them

without Jane Doe A's knowledge or consent. And when the calls ran 

their course, the appellant did not pay Jane Doe A as promised.

Approximately two months passed. Then, the appellant 

contacted Jane Doe A from a different Instagram alias and sent her 

a video recording of one of their earlier calls. He threatened to 

send the video to her parents if she did not engage in more sexually 

oriented video calls with him. Fearing embarrassment, 

humiliation, shame, and the like, Jane Doe A complied.

On many occasions throughout 2020, the appellant

contacted Jane Doe A from numerous Instagram aliases, threatening 

to send explicit recordings of her to her family members if she 

did not comply with his demands to video chat with him. On certain

occasions, the appellant demanded that Jane Doe A leave work to 

video chat with him. Jane Doe A again obeyed, and the appellant

coerced her into performing more sexual and degrading acts over 

video calls on Instagram.

Throughout these interactions, Jane Doe A repeatedly 

expressed her desire not to perform the coerced acts. At one 

point, she told the appellant, "I just wanna know why you want to 
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make me so miserable and to keep chasing me like this." He replied, 

"Honestly, it's fun and you're hot."

The appellant repeatedly promised that he would delete 

the recordings and photographs he had amassed of Jane Doe A if she 

complied with his requests. But these promises were honored only 

in the breach: the appellant continued to retain electronic copies 

of this content, create new content, and use the recordings to 

extort more video calls from Jane Doe A. 

In 2020, the appellant solicited Jane Doe B for sexual 

content and recorded her during a Snapchat video call. The 

appellant subsequently sent an explicit recording of Jane Doe B to 

her roommate and repeatedly attempted to contact Jane Doe B from 

different anonymous social media accounts, threatening at one 

point to send a forty-minute recording of her to her friends if 

she did not respond to him. 

The dam broke in early 2021. When Jane Doe A continued 

to receive harassing messages from the appellant by means of new 

Instagram aliases, she contacted the Federal Bureau of 

Investigation (FBI) and met with FBI agents. She provided the

agents with a photograph of the appellant's face that he had sent 

to her,1 and the agents identified him as the person in the 

1 The appellant transmitted the photograph to Jane Doe A 

through an Instagram application that allowed it to be viewed for 

a temporary duration. Jane Doe A was able to make a permanent 
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photograph through a reverse image search. The appellant's arrest 

followed.

In due course, the government charged the appellant by 

criminal complaint with cyberstalking, see 18 U.S.C. 

§ 2261A(2)(B), and extortion by interstate threat of injury to 

reputation, see id. § 875(d). The appellant soon pleaded guilty 

to the charged offenses. After accepting the appellant's guilty 

plea, the district court ordered the preparation of a PSI Report.

The PSI Report recommended a guideline sentencing range 

of thirty to thirty-seven months. As part of the plea agreement,

the appellant agreed not to challenge any prison sentence of

thirty-seven months or less.

The district court convened the disposition hearing on 

July 20, 2022. At that hearing, neither party objected either to 

the probation department's proposed guideline sentencing range or 

to any other part of the PSI Report. Jane Doe A delivered a 

victim-impact statement in which she described how the appellant

repeatedly threatened and demeaned her, causing her to become 

suicidal and making her feel that she "had no other option in [her] 

life than to be a sexual slave." The government recommended a

thirty-two-month term of immurement, to be followed by thirty-six

months of supervised release. The appellant's counsel argued for 

copy of the image by taking a photograph of her screen using a 

digital camera before the image vanished. 
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a prison sentence of eighteen months, to be followed by thirty-six

months of supervised release. 

After questioning the parties about what efforts had 

been made to ensure that any offending content had been deleted, 

the district court continued the hearing with instructions to the 

parties to provide the court with more information about the 

appellant's social media accounts and electronic devices. Once 

the parties submitted the requested information, the disposition

hearing resumed on October 26, 2022.

At the end of this session, the district court imposed 

an incarcerative sentence of forty-two months, to be followed by 

thirty-six months of supervised release. It also imposed the 

special conditions of supervised release recommended in the PSI 

Report, including a prohibition against working or volunteering in 

any capacity that would cause the appellant to come in direct 

contact with children (except with the approval of a supervising 

probation officer). 

In thoughtfully articulating its decision to impose an 

upwardly variant sentence, the district court gave several 

reasons: 

• First, it highlighted the fact that the appellant

caused his victims "[s]exually-based trauma," which 

it described as "among the most intimate and 

personal types of harm that one person can inflict 
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upon another." Relatedly, the court noted that 

"[p]ost-traumatic stress disorder resulting from 

being sexually violated can affect every aspect of 

a victim's life." With these considerations in 

mind, the court gave special attention to Jane Doe 

A's statement about the trauma she suffered from 

the appellant's actions. 

• Second, the court pointed to the "length of time 

over which [the appellant] traumatized his 

victims," which included "a continuing 18-month 

campaign of harassment, intimidation, and 

extortion." 

• Third, the court spoke of the "power dynamics 

present in this case," explaining that the 

appellant's behavior was "outrageous," in part

because he "took gratification in wielding" power 

over his victims and "revel[ed]" in their anguish. 

• Fourth, the court considered "the special role that 

the Internet played in [the] case," remarking the 

appellant's use of "multiple anonymous social media 

accounts" and "the difficulty of identifying and 

prosecuting Internet-based sex criminals." 

The appellant objected. He claimed, among other things,

that the parties lacked sufficient notice of the district court's 
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intention to impose an upwardly variant sentence. Even so, the

appellant did not request a continuance. The district court 

overruled the appellant's objection in an electronic order, 

explaining that because the "upward variance was based on facts 

culled from the charging documents, the pre-sentence report, the 

parties' sentencing submissions, and the victim impact statement, 

all of which were readily available to the parties months before 

imposition of the variance . . . [,] there was no deficiency of 

notice."

The appellant also objected to the special supervised 

release condition prohibiting him from working or volunteering in 

any capacity that would cause him to come in direct contact with 

children. The district court overruled this objection as well and

declined to strike the condition.

This timely appeal followed.

II

In this venue, the appellant mounts a challenge to his

upwardly variant sentence. He argues that the sentence was 

procedurally flawed because the district court neither gave 

sufficient notice of its intention to impose an upward variance 

nor adequately explained the reasons underlying the variance. In 

addition, the appellant argues that the sentence was substantively 

unreasonable. He also assails the condition of supervised release 

prohibiting him from working or volunteering in any capacity that 
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would put him in direct contact with children, arguing that this 

restriction was not sufficiently grounded in the record. 

In adjudicating sentencing appeals, we typically begin 

by "examin[ing] any claims of procedural error" and — if no 

procedural error is found — proceed to examine any challenge to 

the substantive reasonableness of the sentence. United States v. 

Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020); see United States v. 

Miranda-Díaz, 942 F.3d 33, 39 (1st Cir. 2019). Tagalong matters, 

such as complaints about conditions of supervised release, can 

then be addressed.

We review preserved claims of sentencing error, whether 

procedural or substantive, for abuse of discretion. See United 

States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012). But 

we review unpreserved claims only for plain error. See United 

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

With these standards in mind, we address the appellant's

asseverational array. 

A

We start with the appellant's twin claims of procedural 

error. We treat them separately.

1

In his most loudly bruited claim, the appellant submits

that the district court imposed the upward variance without 

sufficient notice. This claim was preserved below and, thus, our 
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review is for abuse of discretion. See Medina-Villegas, 700 F.3d 

at 583.

It is well-established that a sentencing court is not 

required to give the parties advance notice before imposing an

upwardly variant sentence.2 See Irizarry v. United States, 553 

U.S. 708, 715-16 (2008); United States v. Santini-Santiago, 846 

F.3d 487, 489-90 (1st Cir. 2017). Even so, we have indicated, 

albeit in dictum, that either advance notice or, upon request, a 

continuance may be required when the court "propos[es] to adopt a 

variant sentence relying on some ground or factor that would 

unfairly surprise competent and reasonably prepared counsel." 

United States v. Vega-Santiago, 519 F.3d 1, 5 (1st Cir. 2008) 

(emphasis in original). The ambit of "unfair surprise," though, 

is narrow. There is no unfair surprise either when a variance is 

premised on "[g]arden variety considerations of culpability, 

criminal history, likelihood of re-offense, seriousness of the 

crime, nature of the conduct and so forth" or when a variance is 

premised on "familiar and undisputed" facts. Id. at 5-6; see

United States v. Politano, 522 F.3d 69, 75 (1st Cir. 2008) (holding 

2 Although Rule 32(h) of the Federal Rules of Criminal 

Procedure requires "reasonable notice" of an upward departure from 

the guidelines, this requirement does not apply to variances (as 

opposed to departures). See United States v. Daoust, 888 F.3d 

571, 575 (1st Cir. 2018); United States v. Santini-Santiago, 846 

F.3d 487, 489-90 (1st Cir. 2017). The parties do not dispute that 

the sentence imposed in this case comprised an upward variance, 

not a departure. 
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that upward variance based on seriousness of crime, need for 

deterrence, and risk of recidivism did not require advance notice). 

In this case, the appellant's claim of unfair surprise

dissolves in the acid bath of the record. After all, it is not 

unfair to charge a party with notice of what is plainly there to 

be seen. In this case, no advance notice was required for the 

district court to impose the upward variance.

The appellant's contrary claim boils down to the 

proposition that the district court sandbagged him because it "had 

an opportunity to give the parties notice of its intention to vary 

upwards" but elected not to. But this proposition hinges on the 

kind of "mechanical notice rule" that we have firmly rejected with 

respect to the imposition of upward variances. Vega-Santiago, 519 

F.3d at 5. 

On these facts, it is of no moment that the district 

court — on the first day of the appellant's sentencing hearing —

said nothing about the possibility that it might upwardly vary, 

continued the hearing to a later date, and said nothing about 

imposing an upward variance in the three months before the hearing

resumed. What counts is that it was readily apparent from the 

existing record that the ingredients for an upward variance were 

present. In such a situation, the mere lack of an explicit mention 

of a possible upward variance should not have caused competent and 

reasonably well-prepared counsel to believe that an upward 
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variance was off the table. See United States v. Daoust, 888 F.3d 

571, 576 (1st Cir. 2018) ("Upwardly variant sentences are 

well-known to be within the universe of possible 

sentences . . . .").

Here, moreover, the appellant's claim of unfair surprise 

is undercut by his failure to request a continuance. See United 

States v. Mathur, 624 F.3d 498, 508 (1st Cir. 2010) ("[A] 

defendant's claim of unfair surprise at sentencing is 'severely 

undermined, if not entirely undone, by his neglect to ask the 

district court for a continuance to meet the claimed exigency.'"

(quoting United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st 

Cir. 1989))). The factors on which the district court relied were 

plainly apparent from the record and — absent willful blindness —

the appellant's counsel surely should have realized, no later than 

the first day of the disposition hearing, that an upward variance 

was within the realm of possibility. And if counsel thought that 

more time was needed to marshal arguments against an upward 

variance, she should have sought that time from the district court 

by moving for a continuance. The failure to make such a motion

throws considerable shade on counsel's claim of unfair surprise. 

We reject this claim.

2

The appellant next claims that his sentence was 

procedurally infirm due to the lack of a "sufficient explanation 
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to justify the above-guidelines sentence." Although there is a 

dispute between the parties as to whether this claim was preserved, 

we assume — favorably to the appellant — that it was. 

Consequently, we review the claim for abuse of discretion. See

Medina-Villegas, 700 F.3d at 583.

We start with a bedrock principle: "a reviewing court 

must assess the sentencing court's explanation of an upwardly 

variant sentence in a practical, common-sense manner." Díaz-Lugo, 

963 F.3d at 156. In conducting this assessment, we ask whether 

the district court's explanation "relies on factors not adequately 

accounted for" in fashioning the guideline sentencing range, 

identifies each factor and explains why it calls for an upward 

variance, and is "commensurate with the extent of the variance." 

Id. We are cognizant, however, that the district court may rely 

on factors already considered in constructing the guideline

sentencing range as long as it explains how the guidelines do not 

"sufficiently account[] for the idiosyncrasies of a particular 

case." Id.; see United States v. Del Valle-Rodríguez, 761 F.3d 

171, 176-77 (1st Cir. 2014). 

The district court's explanation of the appellant's

sentence does precisely what our case law requires: it identifies

relevant factors justifying an upward variance and explains why 

the guidelines do not adequately account for each factor, given

the idiosyncrasies of the case at hand. Importantly, the first 
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factor identified by the district court — the degree of severity 

of the harm caused to the appellant's victims (that is, sexually

based trauma, which made one of his victims suicidal) — is not 

accounted for either by the sentencing guidelines or by the 

relevant cyberstalking and extortion statutes. What is more, the

degree of severity of the trauma suffered by the appellant's

victims is plainly supported by the record: Jane Doe A's 

victim-impact statement describes in detail how she was humiliated 

and isolated by the appellant's conduct and how she continued to 

suffer from fear and anxiety when reminded of his harassment.3 

So, too, the district court explained how the guidelines 

failed adequately to account for the other factors upon which it 

relied: the duration of the harassment, the power dynamics between 

the appellant and his victims, and the special role of the

internet. And the court accompanied that explanation with 

case-specific details curated from the record. These included the 

appellant's "continuing 18-month campaign of harassment, 

intimidation, and extortion against [Jane Doe A]"; the "demeaning, 

3 The appellant argues that the district court's reliance on 

this factor was improper because "[t]here was no evidence in the 

record about recent PTSD research or sexually-based trauma." This

argument misses the mark. Although the district court's statement 

of reasons did briefly mention recent research "about the broad 

spectrum of chronic harm that can result in sexually based trauma,"

there was no error in this statement. Moreover, the essence of 

the statement was well-supported by Jane Doe A's victim-impact

statement and was a matter of common sense. 
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misogynistic and callous" nature of his conduct; and his use of 

"multiple anonymous social media accounts."4 Despite the 

appellant's protestations, none of these specific factors are

either inherent in his crimes of conviction or fully accounted for

by the guidelines. And this level of detail was adequate, 

particularly considering the modest scope of the upward variance

(which increased the appellant's sentence by less than fifteen

percent).

4 The appellant cites two instances in which he claims the 

district court overstated the scope of his conduct. First, he 

notes that the court at one point stated that the appellant 

subjected "his victims" to humiliation for "months on end," even 

though the record shows that he harassed only one victim for many 

months. Second, he notes that the court referred at one point to 

"hundreds of videos and thousands of pictures" that the appellant

possessed, to which the government responded that he had "a more 

limited set of data" than that.

Neither of these examples is sufficient to show that the 

district court's sentencing decision was based on an erroneous 

view of the record. Cf. Fed. Refinance Co. v. Klock, 352 F.3d 16, 

28 (1st Cir. 2003) ("We have held before that a reasoned decision 

should not be vacated merely because a lapsus linguae occurred."); 

United States v. Zapata, 1 F.3d 46, 47 n.2 (1st Cir. 1993) 

(disregarding district court's reference to incorrect version of 

sentencing guidelines as lapsus linguae when court's calculations 

otherwise tracked correct version). As to the first alleged error, 

the district court's explanation of its sentence highlighted the 

fact that the appellant subjected a singular "victim" to an 

"18-month campaign of harassment, intimidation, and extortion." 

Thus, we understand the decision to impose an upward variance as 

predicated on the district court's accurate understanding of the 

length of time over which the appellant traumatized Jane Doe A 

specifically. As to the second alleged error, the exchange 

identified by the appellant was subsequently corrected by the 

government.
- 16 -

That ends this aspect of the matter. For these reasons, 

we disagree with the appellant's assertion that his sentence is 

tainted by procedural error.

B

We turn next to the appellant's assault on the

substantive reasonableness of his sentence. Our review is for 

abuse of discretion. See Holguin-Hernandez v. United States, 140 

S. Ct. 762, 766 (2020).

"[T]he hallmarks of a substantively reasonable sentence 

[are] 'a plausible sentencing rationale and a defensible result.'" 

Díaz-Lugo, 963 F.3d at 157 (quoting United States v. Martin, 520 

F.3d 87, 96 (1st Cir. 2008)). We have said before that "an adequate 

explanation for an upward variance and a plausible rationale for 

that variance are almost always two sides of the same coin."

United States v. Valle-Colón, 21 F.4th 44, 50 (1st Cir. 2021). 

Since we already have concluded that the appellant's sentence was 

adequately explained, see supra Part II(A)(2), our analysis of 

substantive reasonableness focuses on the "defensible result" 

element.

We recognize that "there is no perfect sentence." Del 

Valle-Rodríguez, 761 F.3d at 177. Thus, we will validate an 

upwardly variant sentence in the face of a claim of substantive 

unreasonableness as long as the sentence falls within the "wide 

universe of supportable sentencing outcomes." Id. 
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In this case, we conclude that the district court did 

not abuse its discretion by imposing a forty-two-month sentence. 

As we have explained, see supra Part II(A)(2), several aspects of

the appellant's conduct were particularly egregious and not fully 

accounted for by the sentencing guidelines. A five-month variance

from the top of the guideline sentencing range, when viewed in 

relation to the nastiness of the appellant's conduct, was neither

disproportionate nor undeserved. Seen "in the real-world context 

of the appellant's actions," Valle-Colón, 21 F.4th at 50, his 

sentence falls comfortably within the "wide universe of 

supportable sentencing outcomes," Del Valle-Rodríguez, 761 F.3d at 

177.

The appellant demurs. He strives to convince us that 

his case falls within the mine-run of cyberstalking cases and,

thus, that an upward variance is insupportable. See United States

v. Rivera-Berríos, 968 F.3d 130, 137 (1st Cir. 2020). We are not 

persuaded.

To be sure, we previously have acknowledged "that a 

sentencing court must indicate why the defendant's situation 

differs from the mine-run of cases when basing an upward variance 

on a factor already generally accounted for by the [guidelines]." 

Del Valle-Rodríguez, 761 F.3d at 176. But the appellant is reading 

the record through rose-colored glasses when he suggests that this 

is an archetypical cyberstalking case. As is evident from the 
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record and the district court's thoughtful explanation of the 

sentence, several aspects of the appellant's conduct were 

especially egregious. These factors, collectively, distinguish 

this case from the mine-run of cyberstalking cases. The long 

duration of Jane Doe A's harassment (eighteen months), the 

degrading sexual acts that the appellant coerced Jane Doe A into 

performing, and the fact that the appellant was also convicted of 

extortion are prime examples. When the real-world context of the 

appellant's conduct is factored into the mix, the upwardly variant 

sentence imposed by the district court is "readily defensible." 

Valle-Colón, 21 F.4th at 50. 

Our assessment is unchanged by the appellant's 

comparison of this case to two cyberstalking cases that he 

characterizes as mine-run. See United States v. Cardozo, 68 F.4th 

725, 730-31 (1st Cir. 2023); United States v. Ackell, 907 F.3d 67, 

70-71 (1st Cir. 2018). The substantive reasonableness of a 

sentence in a given case depends on the factual record before the 

sentencing court, and the facts of the cases proffered by the 

appellant are so removed from the facts of the appellant's case 

that the sentencing outcomes in the proffered cases have no bearing 

on the outcome here. We explain briefly.

In Ackell, the defendant received a within-the-range 

sentence of thirty-three months for conduct that, unlike the 

appellant's, did not involve the solicitation of live sex acts, 
- 19 -

more than one victim, or a conviction for extortion. 907 F.3d at 

70-71. And in Cardozo, the defendant received a within-the-range 

sentence of seventy months based on an entirely different guideline

range. 68 F.4th at 730-31; see United States v. Cardozo, Nos. 

20-1318, 20-1398, 2021 WL 3771818, at *2 (1st Cir. Aug. 25, 2021) 

(per curiam). 

The appellant also compares his case to some of those in 

which we previously affirmed upwardly variant sentences on what he 

argues are more flagrant facts. The premise of the argument misses 

the point. As we have just said, assessment of the substantive 

reasonableness of a sentence requires close attention to the 

factual record before the district court. The same degree of 

attention is required as to other cases said to be comparators, 

which involve sentences for convictions under various sections of 

the cyberstalking statute, see 18 U.S.C. § 2261A. An obvious 

distinction between this case and the cases cited by the appellant 

is that this case involved not only cyberstalking but also 

extortion and interstate threats of injury to victims' 

reputations. And for other reasons, too, the cases that the 

appellant cites are inapposite: all of them involved larger 

deviations from the applicable guideline sentencing range and 

significantly longer sentences. See United States v. Lee, 790 

F.3d 12, 16, 19 (1st Cir. 2015) (affirming 100-month sentence above 

guideline range of fifty-one to sixty-three months); United States
- 20 -

v. Sayer, 748 F.3d 425, 436-37 (1st Cir. 2014) (affirming 

sixty-month sentence above guideline range of thirty-seven to 

forty-six months); United States v. Walker, 665 F.3d 212, 232-34 

(1st Cir. 2011) (affirming 137-month sentence above guideline 

range of sixty-three to seventy-eight months).

To say more about the length of the appellant's sentence 

would be to paint the lily. We hold, without serious question, 

that the appellant's sentence is substantively reasonable.

C

This leaves the appellant's challenge to one of the 

conditions of his supervised release. That condition, which was 

recommended by the probation department in the PSI Report and 

imposed by the district court, reads:

You are prohibited from being employed in any 

capacity that may cause you to come in direct 

contact with children except under 

circumstances approved in advance by a 

supervising probation officer. In addition, 

you must not participate in any volunteer 

activities that may cause you to come in 

direct contact with children, except under 

circumstances approved in advance by the 

probation officer. Contact is defined as any 

transaction occurring face to face, over the 

telephone, via mail, over the Internet, and 

any third-party communication. 

The appellant's counsel objected to this condition at 

the October 26 sentencing hearing "because the specifics of this 

case don't deal with minors." The government replied that "while 

the specific charges in this case do not relate to minors, there 
- 21 -

is at least an allegation in the complaint, so on the record, of 

communications between [the appellant] over Instagram using one of 

his anonymous accounts and at least one minor female." At this

juncture, the court invited a response, and the appellant's counsel 

stated:

I think maybe, then, if we could make it more 

specific to online contact, rather than the 

type of restrictions that might relate to just 

contact out in the public. With all minors 

seems overly restrictive given the type of 

behavior in this case. So that would be my 

suggestion.

After the government expressed its unwillingness to 

accept the proposed modification, the court asked whether the 

appellant envisioned any particular circumstances in which this 

condition would pose an issue. The appellant's counsel rejoined, 

"I guess I'm just thinking about all the instances where — where 

there could be inadvertent contact that's not — that wouldn't be 

of concern based on his prior behavior, which is limited to online 

behavior." 

Before us, the appellant argues that the challenged 

condition is "overly restrictive and was imposed without adequate 

explanation or basis" because it rested solely on an allegation in 

the criminal complaint that he used one of his anonymous social 

media accounts to send non-sexual messages to a user who had 

represented herself to him as a fifteen-year-old girl. The 

complaint references two messages from this exchange: one in which 
- 22 -

the appellant said that he was "Gary. That's the real name" and 

another in which he said that he was a master's student at a "top 

5 university." 

We agree with the government that the appellant's 

current argument was not preserved. Although the appellant

initially objected to the challenged condition "because the 

specifics of this case don't deal with minors," he changed his 

tune when the government noted his exchange with the 

fifteen-year-old social media user. From that point forward, he 

did not press his objection any further. Nor did he provide any

additional context to indicate that the exchange was more innocent

or less probative than depicted by the government. Instead, the 

appellant's counsel set off in a different direction, suggesting 

that the challenged condition should be limited to online contact 

with minors. We give this suggestion its plain meaning and regard 

it as an acknowledgement that some restriction of the appellant's

association with minors was appropriate. Counsel's later comment 

that the proposed condition could encompass instances of contact 

"that wouldn't be of concern based on [the appellant's] prior 

behavior, which is limited to online behavior," buttresses the 

inference that the appellant was objecting to the challenged 

condition only to the extent that it reached behavior other than 

online behavior. 
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A party cannot preserve a claim of error by switching 

horses in midstream, that is, by making one claim below and a 

different claim on appeal. See United States v. Wallace, 461 F.3d 

15, 35 n.11 (1st Cir. 2006). Here, the basis of the appellant's 

claim below differs materially from the basis of his current claim 

of error. We read the latter as contending that the challenged 

condition is not justified because the appellant "has never 

committed a crime involving a minor, there are no allegations that 

he interacted inappropriately with a minor, and the government did 

not argue that he posed a danger to children." This is a new claim 

and, thus, not preserved. See United States v. Hassan-SalehMohamad, 930 F.3d 1, 6 (1st Cir. 2019) ("To preserve a claim of 

error for appellate review, an objection must be sufficiently 

specific to call the district court's attention to the asserted 

error." (quoting United States v. Soto-Soto, 855 F.3d 445, 448 n.1 

(1st Cir. 2017))). 

Given the disconnect between the claim advanced below 

and the claim advanced on appeal, our review is for plain error. 

See id. Plain error review requires "four showings: (1) that an 

error occurred (2) which was clear or obvious and which not only 

(3) affected the defendant's substantial rights, but also (4) 

seriously impaired the fairness, integrity, or public reputation 

of judicial proceedings." Duarte, 246 F.3d at 60. "A party who 

claims plain error must carry the devoir of persuasion as to all 
- 24 -

four of these elements." United States v. Pinkham, 896 F.3d 133, 

136-37 (1st Cir. 2018).

There is no cause for us to tarry. The district court 

may impose a condition of supervised release without an explicit 

explanation of its rationale so long as the court's reasoning can 

be deduced from the record. See United States v. Cueto-Núñez, 869 

F.3d 31, 40 (1st Cir. 2017). This is such a case. As elucidated 

in the colloquy concerning the imposition of the condition, the 

appellant had contacted a minor female using the same account that 

he had used to prey on women. He boasted to her about being a 

master's student at a "top 5 university." Given the context of 

the appellant's crimes, this exchange conveys a risk that he might 

target children. As such, the justification for the condition 

restricting contact with children is apparent.

Against this backdrop, we turn to the plain error 

framework. Our inquiry starts — and ends — at the second step of 

the framework. We discern no clear or obvious error and, thus, no 

plain error.

Although the appellant asserts that the challenged 

condition is unrelated to his offenses of conviction, the 

sentencing guidelines "do not limit district courts to 

consideration only of the facts of the crime charged." United 

States v. Goodwin, 866 F.3d 478, 481 (1st Cir. 2017) (quoting 

United States v. York, 357 F.3d 14, 19-20 (1st Cir. 2004)); see
- 25 -

United States v. Prochner, 417 F.3d 54, 62-65 (1st Cir. 2005) 

(upholding supervised release conditions involving sex offender 

treatment and limiting defendant's contact with minors even though 

"the record contain[ed] no direct evidence that [the defendant 

had] engaged in inappropriate conduct with minors"). Instead, the 

district court may impose any condition of supervised release that

bears a reasonable relationship to at least one of "(1) the 

defendant's offense, history, and characteristics; (2) the need to 

deter the defendant from further criminal conduct; (3) the need to 

protect the public from further crimes by the defendant; and (4) 

the effective educational, vocational, medical, or other 

correctional treatment of the defendant." York, 356 F.3d at 20. 

In this instance, the record makes manifest that the 

appellant, using one of the same anonymous accounts that he used 

to harass his victims and seek sexually explicit content, exchanged 

messages with a social media user who had represented herself as 

a fifteen-year-old girl. Even though this exchange was not overtly 

sexual in content, we cannot envision a scenario in which an adult 

with good judgment about how to interact with children would find 

it appropriate to reach out to a minor in this context. Relying 

on this evidence, the district court supportably could have 

believed that the appellant — if unrestrained — might pose a threat 

to children and that restricting his interactions with minors in 

certain settings was reasonably related to the goal of protecting 
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the public from future crimes at the appellant's hands. See United 

States v. Pabon, 819 F.3d 26, 31 (1st Cir. 2016) (explaining that 

supervised release conditions restricting association with minors 

"may be proper where the defendant" had committed a sex offense 

against minors "or where the defendant's conduct otherwise 

indicates an enhanced risk to minors" (emphasis in original)). 

Nor does the challenged condition involve "any greater 

deprivation of liberty than is reasonably necessary for the 

purposes of supervised release." Prochner, 417 F.3d at 64. As a 

general matter, we have held that conditions restricting 

association with minors "are sufficiently circumscribed when they 

do not place an outright ban on association with minors, but only 

curtail association, such as by requiring pre-approval by the 

probation officer or another authority, or by operating in limited 

contexts." Pabon, 819 F.3d at 31-32 (internal quotation marks and 

citations omitted). The case at hand fits neatly into this 

paradigm. The challenged condition operates only in the limited 

conditions of employment and volunteer work — and only requires 

the appellant to secure advance approval from a probation officer 

for such activity if it would put him in direct contact with 

children.

The cases cited by the appellant are of little help

because they involve different factual backgrounds and the 

conditions challenged there were considerably more sweeping than 
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the condition at issue here. For example, in United States v. 

Fey, the defendant was convicted of failing to register as a sex 

offender under the Sex Offender Registration and Notification Act, 

18 U.S.C. § 2250(a). 834 F.3d 1, 2 (1st Cir. 2016). The district 

court imposed a supervised release condition prohibiting "direct 

or indirect contact with children under the age of 18, except in 

the presence of a responsible adult who is aware of the nature of 

the defendant's background and current offense, and who has been 

approved by the [probation office]." Id. at 3. We rejected that 

condition, concluding that the defendant's prior sex offense was 

remote (having occurred in 1999) and that the condition was overly 

broad and unsupported by the record. See id. at 4. Here, by 

contrast, the condition is limited to particular settings and to

direct contact, and the evidence of the appellant's posing 

potential risk to children is recent.

United States v. Ramos is equally unavailing. 763 F.3d 

45 (1st Cir. 2014). There, the defendant, who was "recorded on 

video engaging in sex acts with a fourteen-year-old girl," was 

convicted of "aiding and abetting the production of child 

pornography" in violation of 18 U.S.C. § 2251(a). Id. at 49-50. 

On appeal, he challenged a condition of supervised release barring 

"any possession or use, anywhere, of a computer, or of a device 

with the capability to access the internet" without "prior approval 

from probation." Id. at 61. We rejected the proposed condition, 
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in part, because it was too broad "given the importance of the 

internet to daily life, and the availability of narrowly tailored 

monitoring tools." See id. at 61-62. We note, moreover, that the 

condition in Ramos was significantly more restrictive than the 

condition that is challenged here.

Notably, none of these cases support a conclusion that 

the challenged condition "flout[s] 'controlling precedent.'" 

United States v. McCullock, 991 F.3d 313, 322 (1st Cir. 2021) 

(quoting United States v. Morosco, 822 F.3d 1, 21 (1st Cir. 2016)). 

The absence of such a showing is a telltale indication that the 

appellant has failed to identify a clear or obvious error. See

United States v. Rabb, 5 F.4th 95, 101 (1st Cir. 2021) (stating 

that showing of clear or obvious error requires that "a party must 

show that the error is contrary to existing law"); United States

v. Jones, 748 F.3d 64, 69-70 (1st Cir. 2014) (stating that showing 

of clear or obvious error requires that proponent must show that 

error is "indisputable"). Discerning no plain error, we reject 

the appellant's challenge to the disputed supervised release 

condition.

III

We need go no further. For the reasons elucidated above, 

the district court's judgment is

Affirmed.