                           NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with
                                     Fed. R. App. P. 32.1



              United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604

                                    Argued August 4, 2010
                                   Decided August 17, 2010

                                            Before

                             RICHARD A. POSNER, Circuit Judge

                             ILANA DIAMOND ROVNER, Circuit Judge

                             DAVID F. HAMILTON, Circuit Judge

No. 09-3977                                          Appeal from the United States District
                                                     Court for the Northern District of Illinois,
UNITED STATES OF AMERICA,                            Eastern Division.
                  Plaintiff-Appellee,
                                                     No. 1:08-cr-893
       v.
                                                     James T. Moody,
JUSTIN HOUGHTALING,                                  Judge.
              Defendant-Appellant.

                                          ORDER

        While serving a state sentence for first-degree murder, defendant Justin Houghtaling
sent a letter to a federal district judge threatening to kill her. The return address and DNA on
the envelope led authorities to Houghtaling, and he pled guilty to mailing a threatening letter
to a federal judge in violation of 18 U.S.C. § 876(c). The district court sentenced Houghtaling
to the statutory maximum – 120 months in prison – more than double the high end of the
calculated Sentencing Guidelines range of 41 to 51 months, to be served consecutive to the state
sentence. Houghtaling appeals, arguing that his sentence is unreasonable and excessive
because, he contends, the district court relied too heavily on the letter’s vile racist and anti-
Semitic content and failed to consider his personal history and characteristics.
No. 09-3977                                                                               Page 2

        We affirm the sentence. The district court considered the relevant factors and provided
a reasoned basis for exercising its discretion under 18 U.S.C. § 3553. The district court focused
on the abhorrent content of the letter and the gratuitous cruelty the threat attempted to inflict
on the judge. The district court was not impressed by the mitigation arguments and made a
reasonable choice to protect the public from Houghtaling by incapacitating him for as long as
the law would allow.

       We start with the contents of the letter. Houghtaling claimed to head a currently
dormant Aryan organization that follows the teachings of two white supremacists. He accused
the judge of being a “race traitor and a Jude lover whore who prostitutes herself to the niggers,
spics and Jude’s.” He referred repeatedly to the tragic murders of the judge’s mother and
husband in 2005. Houghtaling then stated his desire to catch the judge so that he “could
accomplish the deed that has started with the murder of your whore of a mother and Jude
husband.” He also warned the judge that if something happened to him, other members of
his organization would take his place, and he threatened to “exterminate” her family name.
He signed off with the statement, “I will be for you and when I do I will kill you. I am like
death. I will not be stopped.”

        By way of mitigation, Houghtaling relies on personal information in the presentence
report. His parents were reportedly physically abusive. He began drinking alcohol at age 7
and smoking marijuana at age 8. At age 9 he was diagnosed with attention deficit
hyperactivity disorder and bipolar disorder. After threatening his family, he was sent to a
youth home, where he lived for two years. Trouble with the law led him to spend the years
between the ages of 14 and 18 in a juvenile detention center. He reported that after his release
at age 18, he consumed alcohol, marijuana, and “ecstasy” daily, and LSD on the weekends, but
he denied ever receiving or even needing treatment for substance abuse. He said that he
worked for his father’s roofing company for a while. Within two years after his release,
however, he was convicted of murder after an accomplice in a robbery attempt shot and killed
a store employee. Houghtaling has had no contact with his family since his imprisonment.
While in prison, Houghtaling began taking Thorazine, an anti-psychotic medication.

        The presentence report calculated a Sentencing Guideline range of 41 to 51 months in
prison.    The calculation began with the guideline for Threatening or Harassing
Communication, U.S.S.G. § 2A6.1, and applied victim-related upward adjustments because
Houghtaling targeted the judge based on her status as a government official and based on his
(erroneous, as it happens) belief that her husband was Jewish, U.S.S.G. § 3A1.2 (Official
Victim); § 3A1.1(a) (Hate Crime Motivation). After giving Houghtaling credit for accepting
responsibility, U.S.S.G. § 3E1.1, the presentence report calculated a final offense level of 15.
No. 09-3977                                                                              Page 3

       Turning to criminal history, by the age of 18, Houghtaling had five juvenile
adjudications and two criminal convictions, none of which counted towards his criminal
history score. See U.S.S.G. § 4A1.2(d). After turning 18, Houghtaling committed four other
crimes: disorderly conduct, murder, and (while imprisoned for murder) both perjury and
unlawful possession of a weapon. Houghtaling’s final criminal history score was 14, placing
him in the highest criminal history category of VI, producing a guideline range of 41 to 51
months, which the parties do not dispute.

       Houghtaling requested a within-guidelines sentence to run concurrently with his state
sentence, so that there would be no additional punishment for the threat. To support his
mitigation arguments, he submitted a report from the Department of Justice showing that
someone with his personal history – including physical abuse, substance abuse, early antisocial
behavior, academic failure, and attention disorders – has a greater likelihood of violent
behavior. He argued, however, that his deficiencies could be overcome with proper treatment,
which he has never had. He asserted that specific deterrence would not call for a longer
sentence because his mental issues make it more difficult for him to comply with the law. He
added that he sent the threatening letter to secure a transfer from a state to a federal prison,
and he asserted that he had no way to carry out the threat.

       The government asked for a sentence at the high end of the guidelines range to run
consecutively to Houghtaling’s state sentence. The government did not dispute the history of
substance abuse and troubled upbringing, but noted that Houghtaling did not suffer from a
mental illness and was not intoxicated at the time of the offense. The government called the
offense “repulsive” with the only purpose to “threaten, degrade, and torture a judge” who had
no apparent connection to Houghtaling. The government argued that the threat was worse
than average because Houghtaling capitalized on the judge’s personal tragedy and targeted
the perceived religion and ethnicity of the judge’s murdered family members. Finally, the
government argued that Houghtaling’s continuing offenses in prison proved that he had not
made any progress towards rehabilitation.

        Like the government, the district court acknowledged Houghtaling’s difficult childhood
and unaddressed anger, mental-health, and substance-abuse issues. The court decided,
however, to impose the statutory maximum. The court based the maximum sentence on
Houghtaling’s repeated involvement with the justice system, even while imprisoned, and the
extreme circumstances of this offense. The court noted that Houghtaling hand-picked the
victim from among more than 40 federal judges in Illinois “so that he could prey upon her
unimaginable and horrific personal tragedy to maximize his intended harm,” and concluded
that he “purposefully attempted to inflict upon her very serious emotional distress.” The court
characterized Houghtaling’s threat as “uniquely extraordinary and extreme in its cruelty,” and
concluded that this crime “clearly demonstrates that he is not now and possibly never will be
No. 09-3977                                                                                 Page 4

capable of rehabilitation.” The court believed that Houghtaling “has become an even more
hardened and dangerous person” and that his “history of violence and hate makes him a
substantial risk to the community.” The court alluded to the policy statement in the
Sentencing Guidelines that provides for increased punishment when the defendant’s conduct
was “unusually heinous, cruel, brutal, or degrading.” See U.S.S.G. § 5K2.8 (Extreme Conduct
(Policy Statement)). The court found that Houghtaling’s actions intended to “prolong [the
judge’s] emotional pain from the murders of her mother and her husband.” Therefore, the
court concluded that the guidelines range was insufficient and imposed a 120-month prison
term to be served after he completes his state sentence.

        We review an above-guidelines sentence for an abuse of discretion, allowing due
deference to the district court’s judgment that, taken together, the statutory sentencing factors
justify the extent to which the court went above the Guideline range. Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Mays, 593 F.3d 603, 609 (7th Cir. 2010); United States v. Wise,
556 F.3d 629, 632-33 (7th Cir. 2009). The district court has discretion to sentence a defendant
anywhere within the statutory range based on its evaluation of the sentencing factors in
18 U.S.C. § 3553(a), but if a court chooses to go outside the guidelines range, it must give a
justification commensurate with the degree of divergence. Gall, 552 U.S. at 49-50; United
States v. Jackson, 547 F.3d 786, 792-93 (7th Cir. 2008).

        Houghtaling first contends that the district court improperly dismissed his arguments
for leniency based on his disadvantaged childhood. He blames his troubled upbringing for
his current legal problems. Besides stating that specific deterrence was unlikely to curb his
conduct (given his difficulty conforming his behavior to the law), however, he did not
articulate how the lingering effects of his childhood otherwise would fit in with other statutory
purposes of sentencing. See United States v. Brown, No. 09-1028, 2010 WL 2486096, at *3-4 (7th
Cir. June 22, 2010) (discussing need to connect defendant’s characteristics to sentencing
purposes); United States v. Beier, 490 F.3d 572, 574-75 (7th Cir. 2007) (“A party who fails to
provide cogent reasons or credible empirical evidence for or against a proposed sentence is
pretty much at the mercy of the instincts and intuitions of the sentencing judge.”). The district
court considered this argument but was not persuaded. Houghtaling’s argument about his
difficulty in obeying the law certainly did not require a lower sentence and calls to mind the
fact that one purpose of sentencing under section 3553(a) is to protect the public by
incapacitating the defendant.

       Houghtaling analogizes his situation to one of a person with a mental illness, which can
support a lower sentence if the illness affected the offender’s judgment, making him less
objectively culpable and suggesting that with treatment the offender’s risk of recidivism and
need for deterrence are reduced. See United States v. Miranda, 505 F.3d 785, 792-93 (7th Cir.
No. 09-3977                                                                                Page 5

2007). Houghtaling, however, disclaimed having a mental illness, and he showed no
inclination to seek treatment for substance abuse or mental health if he received a shorter
sentence. Without some assurance that Houghtaling’s issues would be improved by the time
he will be released, the district court did not abuse its discretion in concluding that his
difficulty conforming his behavior to the law pointed toward incapacitating him for as long
as possible.

         Houghtaling’s other basis for leniency – his inability to carry out the threat – is also
unpersuasive. He contends that the letter was just an idle threat and that he posed no actual
danger to the judge. But the statute criminalizes threats, not attempts, since the recipient is
unlikely to know whether a threat is idle or realistic. Although the district court could have
weighed differently this claimed inability to act, the court was not compelled to do. Whether
or not the author of the threat has any ability to carry out the threat, “the threat itself causes
emotional turmoil in the lives of those threatened, including their families, and is, therefore,
itself a crime.” United States v. Austad, 519 F.3d 431, 436 n.6 (8th Cir. 2008).

       Houghtaling next argues that the reasons the district court gave were inadequate to
support such a large increase above the guideline range. He contends that the nature of the
threat was already inherent in the offense, and so, he asserts, the district court had no need to
deviate from the range on that basis. And although he does not contest the seriousness of his
criminal history, Houghtaling argues that a sentence at the statutory maximum was
unreasonably harsh. We disagree.

       First, the district court did not err in finding that the threat was especially egregious
because Houghtaling targeted the judge because of her personal tragedy. Houghtaling had
never had a case before her, and the record does not reveal any possible connection between
them other than that Houghtaling follows the teachings of another white supremacist who also
targeted her. By targeting such a victim and lacing the threat with vile racist and anti-Semitic
hatred, Houghtaling earned the district court’s decision to treat his crime as unusually cruel.

       Second, we agree that Houghtaling’s criminal history and continuing offenses while
imprisoned demonstrate a lack of rehabilitative promise. Even though Houghtaling was only
26 years old at the time of the offense, he was already in the highest criminal history category,
even without counting the 7 crimes he had committed before the age of 18. The need to protect
the public was obvious. The need for incapacitation has supported significant deviations from
the guidelines range in similar threatening-communications cases. See United States v. Pinson,
542 F.3d 822, 833-39 (10th Cir. 2008) (affirming consecutive maximum sentences on all three
counts relating to threats to President, juror, and judge, totaling 240 months’ imprisonment,
135 months above the guideline range, because of the need to protect the public from the 21-
year-old defendant based on his violent youth); Austad, 519 F.3d at 434-36 (affirming 84-month
No. 09-3977                                                                              Page 6

sentence, 38 months above the guideline range, for mailing threatening letter to federal judge
because of defendant’s extensive disciplinary record in prison and likelihood that he would
continue to threaten other members of society). The need to incapacitate Houghtaling could
alone be a sufficient reason to impose a sentence at the statutory maximum. When combined
with the extreme cruelty of the offense and the lack of any reason to believe that the defendant
is receptive to treatment, the district court’s sentence is reasonable.

                                                                                   AFFIRMED.
