United States v. Christopher Osinger

Opinion by Judge RAWLINSON; Concurrence by Judge WATFORD.

OPINION

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.

*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 Y.B., as well as to her co-workers and Mends. 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…

concurring:

I agree with my colleagues that Christopher Osinger’s conviction and sentence for violating 18 U.S.C. § 2261A should be affirmed, notwithstanding his First Amendment objections. I write separately to add a few additional thoughts on why Osinger’s as-applied challenge fails.

I

I agree with the court that Osinger’s speech isn’t entitled to First Amendment protection because it was “speech integral to criminal conduct.” See United States v. Stevens, 559 U.S. 460, 468 , 130 S.Ct. 1577 , 176 L.Ed.2d 435 (2010); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 , 69 S.Ct. 684 , 93 L.Ed. 834 (1949). This exception to the First Amendment has been and remains controversial; its boundaries and underlying rationale have not been clearly defined, leaving the precise scope of the exception unsettled. See Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones, 90 Cornell L.Rev. 1277, 1311-26 (2005). But whatever difficulties may arise from application of the exception in other contexts, it surely applies when the defendant commits an offense by engaging in both speech and non-speech…

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…