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Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges. This case challenges the constitutionality of the cyberstalking statute, 18 U. He also appeals from his sentence, arguing that he was eligible for a downward departure from a Guidelines sentence and so his sentence above the Guidelines range was unreasonable. After their break-up, Sayer persistently stalked and harassed Jane Doe for over four years. Sayer's argument, on appeal, that a § 5K2.23 downward departure was warranted merely because he was eligible for it ignores that the district court's refusal to depart downward was discretionary, regardless of his eligibility. Battle, 637 F.3d 44, 51–52 (1st Cir.2011) (stating that decision not to depart downward from Guidelines range is discretionary). The court also addressed relevant sentencing factors, 18 U. The district court's reasoned decision to vary upward rather than depart downward under § 5K2.23 was not an abuse of discretion. Santiago–Rivera, 744 F.3d 229, 234 (1st Cir.2014) (reviewing reasonableness of variant sentence under “highly deferential abuse-of-discretion standard”). His claim of lack of notice is not credible for three reasons. 14, 2014) (holding that district court committed procedural error where it increased defendant's sentence, without any prior notice to the defendant, based on a conclusion it had drawn solely from the separate proceeding of a co-defendant). The amended statute has no impact on this appeal, as it is not retroactive, and so the 2006 version of § 2261A applies to Sayer. Goncalves, 642 F.3d 245, 252 (1st Cir.2011) (explaining that defendants are liable under the statutes in effect at “the time of the conduct that makes the[m] liable”). As a result, we refer only to the 2006 version of § 2261A(2) in this opinion.4. The test applies only where the “communicative element in [the] conduct is sufficient to bring into play the First Amendment.” Id. Where, as here, all of the speech in Sayer's course of conduct is excluded from the First Amendment's protection, we need not apply the O'Brien test. 489, 495 (1982) (“A plaintiff who engages in some conduct that is clearly proscribed [by a statute] cannot complain of the vagueness of the law as applied to the conduct of others.”); accord Blum v. 14 (1st Cir.2014) (no standing to assert vagueness claim where plaintiffs' proposed conduct is clearly proscribed by statute). They found two desktop computers that lacked hard drives and an empty laptop computer case. Sayer said that his computers had been hacked, so he had thrown out the hard drives. Jane Doe began a new career and felt safe for a couple of months until August 25, 2009, when an unknown man showed up at her home in Louisiana and addressed her by her new name. This claim is waived, as Sayer merely repeats his overbreadth argument and does not develop a separate and distinct argument under the vagueness doctrine. Zannino, 895 F.2d 1, 17 (1st Cir.1990); see also Holder v. He argues that the district court should have departed downward under U. Jane Doe said “the hairs on [her] arms stood up,” as she had not told anyone except for a neighbor and her parents that she was moving.