               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 18-1721

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                             DONALD CAIN,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge


                                 Before

                 Torruella, Stahl, and Kayatta,
                         Circuit Judges.


     Joshua L. Solomon and Pollack Solomon Duffy LLP on brief for
appellant.
     Renée M. Bunker, Assistant United States Attorney, Appellate
Chief, and Halsey B. Frank, United States Attorney, on brief for
appellee.



                             July 1, 2019
            STAHL, Circuit Judge. Defendant-Appellant Donald Cain

appeals his sentence for stalking.             Following Cain's guilty plea,

the     district     court      calculated       a   Sentencing      Guidelines

("Guidelines") range of 30 to 37 months.                   The district court

ultimately imposed the statutory maximum sentence of 60 months,

noting that Cain had relentlessly harassed the victim for over a

year, threatened her children, mother, and former husband, and

repeatedly defied a court protection order.

            On     appeal,       Cain        challenges        the   substantive

reasonableness of his sentence.              He contends that the district

court   abused     its   discretion     in     imposing   an    above-Guidelines

sentence.   We affirm.

            I.     Factual Background

            "Because this sentencing appeal follows from a guilty

plea, we 'glean the relevant facts from the plea agreement, the

change-of-plea      colloquy,    the    presentence       investigation   report

[PSR], and the transcript of [sentencing].'"                   United States v.

Severino-Pacheco, 911 F.3d 14, 17 (1st Cir. 2018) (quoting United

States v. Fernández-Cabrera, 625 F.3d 48, 50 (1st Cir. 2010)).

            After a short courtship, Cain married L.H., a resident

of Houlton, Maine, in August 2014.              At the time, Cain was living

in Calais, Maine, and working as a superintendent overseeing the

construction of a local Walmart.          Shortly after the marriage, Cain

relocated to San Antonio, Texas, for his employment.                   Although


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Cain insisted that L.H. accompany him to Texas, she decided to

remain in Maine because of her strong ties to the area.

            In November 2014, L.H.'s employer alerted the FBI "that

multiple anonymous complaints were being filed on a daily basis

against L.H. on the [company's] website."      The complaints "accused

L.H. of sexually harassing her employees, barring employment to

people because of their race, flirting with married customers, and

generally providing poor service to customers."       After conducting

an    internal   investigation,   the   employer   concluded   that   the

complaints were fabricated and that "[t]he frequency and volume of

the    complaints   caused   enough     disruption"   to   warrant    law

enforcement involvement.

            The resulting FBI investigation revealed that between

November 27, 2014, and December 27, 2015, "Cain stalked and

harassed L.H. via telephone calls and text messages, some of which

contained threats to injure L.H. and her immediate family members."

At all relevant times, Cain resided outside of Maine and sent the

messages through a "facility of interstate commerce, namely a

telephone."

            Initially, Cain called L.H. approximately 25 times per

day. When L.H. refused to answer Cain's communications and changed

her phone number and email address, Cain would instead harass her

mother, sister, and ex-husband.




                                  - 3 -
           On December 13, 2014, L.H. recorded a call from Cain in

which he said:

           I'm going to get rid of your mother . . . if
           I have to drive f***ing all the way over there
           and shoot her in the f***ing head myself, I'm
           going to get rid of her because I don't like
           that b****.

That same day, Cain texted L.H. a video depicting him sitting in

a vehicle, holding a gun to his head, and threatening to kill

himself.    Concerned, L.H. asked that the San Antonio Police

Department conduct a wellbeing check on Cain.     During the check,

Cain admitted that he sent the video to L.H. "to get a rise out of

her" and compel her to visit him.    He further admitted to sending

a similar video two or three weeks prior.

           On February 12, 2015, L.H. went to the Houlton Police

Department to complain about Cain's harassment.   While L.H. was at

the police station, Cain called her several times.      An officer

answered a few of these calls and warned Cain to leave L.H. alone,

but he ignored those warnings.      During one of these calls, the

caller ID function on L.H.'s phone identified the call as coming

from the Houlton Police Department itself.     An officer answered

that call on speaker phone, and he and L.H. both identified Cain




                               - 4 -
as the caller.    This was one of multiple occasions where Cain

called L.H. using "spoofing" technology.1

          Thereafter, on March 3, 2015, L.H. obtained a temporary

protection-from-harassment order.      Then, apparently on the same

day (although the record is not entirely clear), the Houlton Police

Department obtained a warrant for Cain's arrest for telephone

harassment, and he was in fact arrested in Houlton and personally

served the protection order on March 4, 2015.    A final protection

order was issued on April 6, 2015.

          Despite the protection order, Cain escalated his threats

against L.H.   Soon, he was calling, texting, or emailing her over

100 times per day.    On June 5, 2015, alone, Cain sent L.H. 122

text messages and made 100 phone calls.     In these communications,

Cain frequently threatened to kill L.H. and encouraged her to

commit suicide.    He also threatened to rape L.H. and rape and

murder her family members, claiming that he could have members of

the motorcycle gang Hell's Angels commit those crimes.

          Cain further accused L.H. of promiscuity and called her

vulgar names such as "whore," "bitch," and "pigf***er."           He

utilized a cellphone application to track L.H.'s location and sent

her messages referencing places she had been, insinuating that she



     1  Caller ID "spoofing" is the practice of changing the
caller's phone number to any number other than the actual calling
number.


                               - 5 -
was being surveilled.    In addition, on several occasions between

July and September 2015, Cain sent L.H. videos of the two of them

having consensual sex that were recorded without her permission.

He threatened to distribute the videos if L.H. would not return

his calls immediately.   And, in even more macabre fashion, he also

sent L.H. what appeared to be her own obituary designed for

publication in a local newspaper.

          Cain was ultimately arrested on federal stalking charges

on January 21, 2016.     Although he was released on bail, he was

later cited in Nevada for driving under the influence of alcohol

on April 19, 2018.    He was subsequently arrested on May 8, 2018,

for violating one of the conditions of bail -- namely, that he

refrain from consuming alcohol.

          II.   Procedural Background

          On August 9, 2016, Cain was indicted on three counts.

Count One charged him with stalking in violation of 18 U.S.C. §

2261A(2)(B), and Counts Two and Three charged him with transmitting

threatening communications in interstate commerce in violation of

18 U.S.C. § 875(c).

          On January 9, 2018, Cain pleaded guilty to Count One

pursuant to a plea agreement.   In exchange, the government agreed

to dismiss Counts Two and Three and to recommend a sentence at the

low end of the applicable Guidelines range.   According to the PSR,

Cain's base offense level was 18, which was increased four levels


                                - 6 -
pursuant to U.S.S.G. § 2A6.2(b)(1) due to the presence of three

aggravating       factors:    violation     of   a   court    protection    order,

threatened use of a dangerous weapon, and engaging in a pattern of

activity    involving        stalking,    threatening,       and   harassing    the

victim.     Probation recommended an additional two-level increase

for obstruction of justice due to the magistrate judge finding

Cain's testimony not credible at a prior suppression hearing.

Finally, probation suggested that a reduction pursuant to U.S.S.G.

§   3E1.1   for    acceptance     of    responsibility       was   not   warranted,

yielding a total offense level of 24.

            At sentencing, the district court declined to apply the

two-level increase for obstruction of justice.                 The court further

reduced     the     offense     level      by    three   for       acceptance    of

responsibility, yielding a final offense level of 19.                       Cain's

Criminal History Category was determined to be I, resulting in a

Guidelines range of 30 to 37 months.2

            Pursuant to the plea agreement, the Government requested

a sentence of 30 months.               Defense counsel, noting Cain's work

ethic, support from his family, and lack of criminal history,

requested a sentence "far below the 30 months that the government

ha[d] recommended."



      2 Probation, by contrast, had recommended a total offense
level of 24, which corresponds to a Guidelines range of 51 to 63
months.


                                         - 7 -
             The district court then addressed the sentencing factors

enumerated in 18 U.S.C. § 3553(a).           It began by discussing Cain's

steady work history, family ties, and minimal criminal history.

However, the court observed that Cain had waged "an unrelenting

and vicious campaign of harassment against L.H." that lasted

thirteen months.         Even taking into account that the unraveling of

a relationship can be contentious, Cain's conduct amounted to "a

constant and deliberate psychological torture."              The court noted

that Cain had unleashed a constant barrage of emails, texts, and

calls, in which he repeatedly threatened to harm L.H. and her

family, in defiance of a court protection order.                     The court

continued, stating that Cain's crime was far removed from "an

average stalking crime, if there is such a thing," and that it had

"never seen a stalking crime of such length, such intensity, such

vulgarity,        such   scope,   such   sophistication,      such    impact."

Ultimately, the court concluded that Cain's conduct passed from

the realm of stalking into "domestic terrorism."              Weighing these

factors, the district court imposed the statutory maximum sentence

of 60 months.        See 18 U.S.C. § 2261(b)(5).          This timely appeal

followed.

             III. Analysis

             On     appeal,   Cain   only    challenges     the   substantive

reasonableness of his sentence, arguing that the imposition of the

statutory maximum was indefensible given his positive attributes


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and minimal criminal history.3    He also notes that because the

court imposed the maximum sentence, he "received no benefit from

having pled guilty."   At his sentencing, Cain made no objection to

the length of his sentence.4

          "In reviewing the [substantive] reasonableness of a

sentence outside the Guidelines range, appellate courts may . . .

take the degree of variance into account and consider the extent

of a deviation from the Guidelines."     Gall v. United States, 552

U.S. 38, 47 (2007).    "Regardless of whether the sentence imposed

is inside or outside the Guidelines range, the appellate court []

review[s] the sentence under an abuse-of-discretion standard."

Id. at 51.    "Although the standard of review for unpreserved

challenges to the substantive reasonableness of a sentence remains

unclear," even in the event of a preserved challenge "an appellate

court only reverses where the sentence is outside of the expansive

universe of reasonable sentences."     Severino-Pacheco, 911 F.3d at

21 (internal quotation marks, alterations, and citations omitted).


     3 The plea agreement also included a waiver of appeal.
However, because Cain only waived his right to appeal "[a] sentence
of imprisonment that does not exceed 37 months," the waiver is
inapplicable here.
     4 "The Supreme Court recently granted certiorari on the
question of whether a formal objection after pronouncement of
sentence is necessary to invoke appellate reasonableness review of
the length of a defendant's sentence." United States v. Reyes-
Gomez, No. 17-1757, 2019 WL 2428448, at *2 n.3 (1st Cir. June 11,
2019) (internal quotation marks, alteration, and citation
omitted).


                               - 9 -
"[T]he linchpin of a reasonable sentence is a plausible sentencing

rationale and a defensible result."        United States v. Martin, 520

F.3d 87, 96 (1st Cir. 2008) (citing United States v. Jiménez-

Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc), abrogated by

Rita v. United States, 551 U.S. 338 (2007)).

          Cain's argument fails this highly deferential standard

of review, as "we have scant difficulty concluding that the

defendant's above-the-range sentence 'served the objectives of

sentencing.'"    United States v. Santiago-Rivera, 744 F.3d 229, 234

(1st Cir. 2014) (alteration omitted) (quoting Kimbrough v. United

States, 552 U.S. 85, 91 (2007)).          As the district court noted,

Cain embarked on a relentless thirteen-month stalking campaign.

He threatened to brutally rape and murder the victim and her family

members, often in graphic terms.          The cumulative effect of the

many thousands of texts, phone calls, and emails Cain sent caused

L.H. to live a life of constant paranoia and fear.         To be sure,

there were mitigating factors, including Cain's decision to plead

guilty, which protected L.H. from having to testify at trial.

However, "a defendant does not ensure himself a reduced sentence

simply by identifying potentially mitigating factors."           United

States v. Madera-Ortiz, 637 F.3d 26, 32 (1st Cir. 2011) (citing

United States v. Carrasco-de-Jesús, 589 F.3d 22, 29 (1st Cir.

2009)).   An    experienced   jurist   ultimately   decided   that   the

egregious details of Cain's crime warranted the statutory maximum


                                 - 10 -
sentence.    While some might deem that sentence harsh, that is the

type of judgment call we have repeatedly stated is within the sound

discretion of the sentencing court.             See id., 637 F.3d at 32

(citing United States v. Stone, 575 F.3d 83, 97 (1st Cir. 2009)).

            Finally, we briefly address Cain's argument that his

sentence    was   disproportionate     to    sentences   imposed   in   other

stalking cases.     For example, he notes that in United States v.

Sayer, 748 F.3d 425, 436-37 (1st Cir. 2014), we affirmed a district

court's imposition of the statutory-maximum sixty-month sentence

where the defendant stalked his victim for a much longer period of

time -- four years.5      Similarly, in United States v. Humphries,

No. 12-cr-347-RWS, 2013 WL 5797116, at *6 (S.D.N.Y. Oct. 28, 2013),

the   district    court   imposed     a     below-Guidelines   thirty-month

sentence on a defendant who stalked his victim for three years and

was convicted at trial.     However, Cain's reliance on these cases

is misplaced.     We recently cautioned that sentences in other cases

and jurisdictions do not establish a baseline for substantive

reasonableness.     See United States v. Ríos-Rivera, 913 F.3d 38, 46

(1st Cir. 2019).     Again, the core of our analysis is whether the


      5Cain further contends that the defendant's conduct in Sayer
was more egregious because that defendant physically stalked the
victim and created fraudulent advertisements in the victim's name
that solicited sexual encounters from strangers. Therefore, Cain
reasons his sentence should be lower.     We do not find Sayer a
helpful comparison.    As the district court observed, Cain sent
thousands of threats, and many of them were highly violent in
nature.


                                    - 11 -
sentencing court has posited a "plausible sentencing rationale and

a defensible result."   Santiago-Rivera, 744 F.3d at 234 (internal

quotation marks and citation omitted).    "[I]t is not a basis for

reversal that we, if sitting as a court of first instance, would

have sentenced the defendant differently."     Martin, 520 F.3d at

92.   Because the district court articulated a "plausible rationale

and a defensible result," we cannot say its imposition of the

statutory-maximum sentence was an abuse of discretion.6

           IV.   Conclusion

           For the foregoing reasons, the district court's sentence

is AFFIRMED.




      6In his brief, Cain also states "it is noteworthy that the
calculated [Guidelines] range already included enhancements of the
type that appeared to motivate the harshness of the District
Court's sentence." To the extent this constitutes an argument, it
is waived for lack of developed argumentation. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Even if this contention
were not waived, it would not affect our analysis.


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