Beyond Monetary Loss: The First Circuit Confirms Broad Judicial Discretion to Vary Upward When Victim Privacy and Trust Are Eroded
Commentary on United States v. Waithe, 85 F.4th ___ (1st Cir. 2025)

1. Introduction

United States v. Waithe presented the First Circuit with a modern sentencing dilemma born of the digital age: how should federal courts respond when an offender weaponises technology and a position of authority to steal, barter and publicise intimate images, leaving victims with psychological injuries rather than empty bank accounts? Former collegiate track-and-field coach Steve Leon Waithe pleaded guilty to cyberstalking, wire fraud, computer fraud and conspiracy after orchestrating multi-layered schemes that targeted more than one hundred women—mostly athletes he once coached. The District Court for the District of Massachusetts imposed a five-year sentence, exceeding the Guidelines range (27–33 months). Waithe appealed, alleging the sentence was both procedurally and substantively unreasonable. The First Circuit affirmed.

2. Summary of the Judgment

• Procedural Reasonableness: The panel rejected claims that the District Court relied on “clearly erroneous facts” (i.e., treating pre-trial misconduct as a separate crime) or failed to consider sentencing disparities under 18 U.S.C. § 3553(a)(6). The court found the lower court’s references to post-indictment behaviour relevant to recidivism—not an impermissible new-crime enhancement—and held that the judge adequately distinguished comparator cases.
• Substantive Reasonableness: The upward variance was supported by (1) the unusually high number of victims, (2) the nature of the harm (privacy violations, abuse of trust, lasting trauma), and (3) recidivism concerns evidenced by internet use while on release. A 60-month sentence therefore lay within “the universe of reasonable outcomes.”
• Key Holding / Precedent: When a defendant’s conduct involves non-economic harms—particularly invasion of privacy, sexual exploitation, and betrayal of a position of trust—the Sentencing Guidelines may underestimate offense gravity. In such circumstances, an upward variance of roughly six offense levels (here, +27 months) can be proper so long as the court articulates a plausible rationale tethered to § 3553(a).

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Gall v. United States, 552 U.S. 38 (2007) — reiterated as the touchstone for distinguishing procedural and substantive error.
• United States v. Spinks, 63 F.4th 95 (1st Cir. 2023) — clarifies that appellate recitations of facts may rely on plea, PSR and sentencing-hearing records; set framework for “undisputed facts” narrative.
• Vázquez-Martínez, 812 F.3d 18 (1st Cir. 2016) & Morales-Negrón, 974 F.3d 63 (1st Cir. 2020) — limit the weight accorded to written Statements of Reasons when the oral record suffices.
• Carmona-Alomar, 109 F.4th 60 (1st Cir. 2024) — instructs appellate courts to read sentencing remarks “in full context.”
• Series of cases on upward variances and explanation duties: Flores-Nater (2023), Montero-Montero (2016), Leach (2023), Díaz-Lugo (2020), and Del Valle-Rodríguez (2014). These guided the panel’s view that a succinct but “plausible” rationale suffices.
• Comparator “celebrity-hacker” cases (Majercyzk, Moore) were addressed to evaluate § 3553(a)(6) disparity concerns, ultimately held distinguishable because they lacked the coach–athlete trust dimension.

3.2 The Court’s Legal Reasoning

The First Circuit’s reasoning proceeds through the two classic stages of appellate sentencing review:

1. Procedural inquiry — ensuring correct Guideline calculations, opportunity for argument, and consideration of § 3553(a) factors.
   • The panel found no clearly erroneous fact-finding; the District Court’s statement that Waithe “did it again” referred to continued solicitation, legitimately informing recidivism risk.
   • On disparity, it upheld the judge’s qualitative distinction: Waithe’s victims knew him and suffered psychological devastation, whereas comparators largely involved anonymous hacks.
2. Substantive inquiry — assessing whether the chosen sentence falls within the wide realm of reasonableness.
   • The panel emphasised the “real-world context” of privacy crimes. Financial-loss tables in § 2B1.1 did not account for the type of harm. The judge permissibly used the large victim pool (+2 levels), then considered the profound non-economic harm as a separate aggravator.
   • Recidivism: Violative Instagram use while on bond evidenced obsession, justifying a longer custodial term for public protection (§ 3553(a)(2)(C)).
   

3.3 Potential Impact of the Decision

• Privacy-Crimes Sentencing: The opinion signals that traditional fraud guidelines, built around dollar loss, may materially under-capture privacy-based and sexual-exploitation harms. District courts in the First Circuit now have appellate assurance that upward variances are appropriate where psychological and dignitary injuries predominate.
• Authority-Figure Exploitation: Coaches, teachers, doctors and others in fiduciary or quasi-fiduciary roles can expect heightened sentences when they leverage trust to obtain sexual content—irrespective of the absence of hands-on abuse or child-porn charges.
• Recidivism Evidence: Post-indictment misconduct—even if not formally charged—may validly increase sentences as a sign of persistent dangerousness. Defendants on pre-trial release in technology-centric cases therefore face elevated risks if they violate device conditions.
• Guideline Reform Pressure: The decision adds to mounting criticism that § 2B1.1’s loss-centric structure inadequately addresses non-monetary harms (identity theft, doxxing, image-based sexual abuse). The Sentencing Commission may face increased calls to create privacy-specific enhancements.

4. Complex Concepts Simplified

• Guideline “Groups” & Offense Levels: When multiple counts of conviction involve different harms, they are “grouped.” The group with the highest offense level (here, cyberstalking at level 22) usually anchors the combined score; other groups may add incremental levels.
• Variance vs. Departure: A departure is a move outside the Guidelines dictated by the Guidelines’ own policy statements. A variance (as here) is purely under the court’s discretionary § 3553(a) authority.
• Procedural vs. Substantive Reasonableness: Procedural errors involve mistakes in calculation or factor consideration; substantive review asks whether, even if procedurally sound, the sentence is “too harsh” or “too lenient” in light of the record.
• Plain Error vs. Abuse-of-Discretion Review: If a defendant fails to lodge a specific objection at sentencing, the appellate court looks for “plain error” (a higher bar). Ambiguous objections can spark debate, as happened here, but the First Circuit resolved doubts in Waithe’s favour and still affirmed.

5. Conclusion

United States v. Waithe cements an important doctrinal proposition: non-economic harms—particularly those involving sexual privacy violations and abuse of trusted positions—can justify substantial upward variances beyond the Sentencing Guidelines’ numeric recommendations. The First Circuit’s methodical affirmation provides a blueprint for district judges confronting digital exploitation cases where psychological trauma, not financial loss, defines severity. Future litigants should anticipate that (1) victim-impact narratives, (2) authority-figure dynamics, and (3) post-indictment misconduct will weigh heavily in determining sentence length. Meanwhile, policymakers may see the opinion as additional evidence that the current fraud guideline requires recalibration for a world in which bytes, rather than dollars, inflict the deepest wounds.