229 F.3d 641 (7th Cir. 2000)
AMYN KAPADIA, Plaintiff-Appellant,v.RODNEY L. TALLY, Defendant-Appellee.
No. 98-1654
In the  United States Court of Appeals  For the Seventh Circuit
Argued November 30, 1999Decided October 12, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.  No. 96 C 7929--David H. Coar, Judge.
Before MANION, KANNE and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.


1
Amyn Kapadia was  convicted in the Circuit Court of Cook County,  Illinois of burglary and arson of a Jewish  community center. The trial court judge meted out  the harshest sentence possible under state law,  a fourteen year term of imprisonment, after a  courtroom deputy testified that Kapadia uttered  a number of anti-Semitic slurs on his way out of  court after being convicted. Kapadia complains  that enhancing his sentence because he professes  vile beliefs violates his First Amendment rights.  However, the trial court enhanced Kapadia's  sentence because of his poor rehabilitative  potential and his future dangerousness and not  because of his anti-Semitic speech, and we  therefore affirm the district court's denial of  Kapadia's petition for habeas corpus.

I.

2
We take the facts as the trial court found them  to be. In November 1993, Amyn Kapadia and Jason  Wiederhold burglarized and set fire to the  Friends of Refugees of Eastern Europe center (the  "F.R.E.E. center"). The F.R.E.E. center was a  Jewish Orthodox organization that provided  services to recent Russian Jewish immigrants. In  addition to a reception area, kitchen, business  offices, vocational offices and a study, the  center housed a small synagogue where religious  services were held. After a bench trial, the  court found both defendants guilty and set a date  for a sentencing hearing. On his way out of the  courtroom, Kapadia said to Deputy Joseph Bennett,  "You can tell the Judge for me . . . that he's a  bitch and fuck the Jews." Later that day, while  in lockup, Kapadia asked Deputy Bennett whether  "that Judge is a Jew, too?" and then answered his  own question by stating, "I'll bet he is that  fucking schmuck." At another time, Deputy Bennett  also heard Kapadia mutter, "Those fucking Jews."  Another deputy also heard Kapadia say, "Fucking  Jews, man," as he was being escorted into lockup  after a court date in his case. Deputy Bennett  passed these remarks on to the trial judge before  the sentencing hearing, and the trial judge told  the Deputy to inform both the prosecution and the  defense about the remarks. At the sentencing  hearing, the prosecution urged the judge to  sentence Kapadia to "substantial penitentiary  time," at least in part because the crime was  committed against a Jewish community organization  that aided Russian immigrants who came to the  United States to escape persecution only to "run  into the likes of Amyn Kapadia." R. 1, Ex. C at  A-10. Because the prosecution raised this issue,  the court asked the parties whether either  intended to call Deputy Bennett as a witness.  Both the defense and the prosecution declined the  court's invitation. The trial judge then stated,  "The record should reflect then that I will not  consider either the remark about me or about the  Jewish community in aggravation. I'll proceed  strictly on the basis of what is in the record."  R. 1, Ex. C at A-11.


3
The trial court then solicited argument  regarding mitigation from Kapadia's counsel.  Kapadia's counsel stated


4
Judge, by way of argument, I object strenuously  for the state's attorney trying to introduce race  into this argument. There has been absolutely no  suggestion during the trial, the conduct of the  trial, the conduct of the people involved in the  trial, that the fact that this was a Jewish  synagogue had anything to do with anything,  especially the conduct of my client.


5
R. 1, Ex. C at A-11. The trial judge replied


6
You're absolutely right. That's why Deputy  Bennett has to be here. Order of court, this  matter is put over to September 23rd. Subpoena  Deputy Bennett. Your point is well-taken. It's  important aggravating information. You, of  course, were informed by Deputy Bennett, because  I told him to inform you, so you are not unaware  of this. But based upon that information that I  received that is of record, I have to dispute  what you have to say. Since I'm actually aware of  that, I ought to be also legally aware of that.


7
R. 1, Ex. C at A-11 through A-12. At the  continued sentencing hearing, Deputy Bennett  testified to the anti-Semitic remarks Kapadia  uttered at various times. The sentencing judge  then heard the argument of counsel and remarked  that he had been called more names than any other  professional except a tax collector. He  continued


8
What troubles me, of course, is the vitriol  directed towards the group that also happens to  be the victims. Talk about the larger group, the  societal group, East European Jews who are the  victims in this case. I did take the comments  into consideration because one of the things I  have to consider is the possibility of  reformation of the defendant. How likely is this  defendant to be restored to useful citizenship.


9
R. 1, Ex. C at C-25. The court went on to comment  on the lessons of history, and the anti-Semitic  hooliganism that preceded Krystalnacht, the  "night of broken glass" in 1938 when 1700  synagogues and Jewish-owned businesses were  destroyed by mobs led by Nazi party members,  leading to the deaths of a very large number of  Jewish individuals. The court then remarked


10
I take these matters into very, very serious  consideration in the case of Mr. Kapadia,  therefore, because his virulent anti-Semitism is  indicative of the fact [that] he is not likely to  change his ways. He is not likely to become a  productive member of society. So, it's certainly  a[n] aggravating factor.


11
R. 1, Ex. C at C-27 through C-28. The court then  sentenced Kapadia to a fourteen year term of  imprisonment, the longest term allowed under  Illinois law for burglary and arson. The court  sentenced Wiederhold to a five year term of  imprisonment, reasoning that his conduct was  caused at least in part by his association with  "the tumultuous and virulent Mr. Kapadia," and  that he was therefore less culpable than Kapadia,  and could conceivably be re-integrated into  society. R. 1, Ex. C at C-28.


12
Kapadia appealed his sentence through the  Illinois courts. The Appellate Court affirmed,  and the Illinois Supreme Court declined to hear  the case. Kapadia then filed a petition for a  writ of habeas corpus in the district court,  contending that enhancing his sentence on the  basis of his anti-Semitic remarks was  unconstitutional because the sentencing judge  made no finding tying the remarks to his  motivation to commit the crime. He argued that  the trial court violated his First Amendment  rights when the court used his protected speech  as evidence of character and rehabilitative  potential. The district court denied his petition  and he appeals.

II.

13
Under the Anti-terrorism and Effective Death  Penalty Act ("AEDPA"), we defer to state court  merit adjudications. Sanchez v. Gilmore, 189 F.3d  619, 623 (7th Cir. 1999), cert. denied, 120 S.  Ct. 1724 (2000). To obtain habeas corpus relief  under the AEDPA, Kapadia must show that the state  court determinations under review are either  contrary to or employ an unreasonable application  of federal law as determined by the United States  Supreme Court. Id. Kapadia may also attack the  state court's adjudication on the ground that it  is an unreasonable determination of the facts,  although we presume state court factual findings  are correct unless the petitioner rebuts the  presumption with clear and convincing evidence.  Id. We review state court legal conclusions de  novo, and we apply that same standard to mixed  questions of law and fact. Id. Kapadia complains  that the trial court did not tie his anti-Semitic  statements to his crime and therefore punished  him solely for expressing an unpopular opinion.  Because Kapadia must show that the state court  determinations under review are either contrary  to or employ an unreasonable application of  federal law as determined by the United States  Supreme Court, we turn first to the Supreme Court  cases on which Kapadia relies.

A.

14
In Barclay v. Florida, 463 U.S. 939, 948-51  (1983), a plurality of the Court rejected a  capital defendant's claim that the sentencing  judge had improperly injected a non-statutory  aggravating factor of racial hatred into his  sentencing consideration. Barclay belonged to a  group that called itself the Black Liberation  Army, a group that desired to start a race war.  Together with four other men, Barclay murdered a  white man and pinned a racist note to his body  with a knife. The sentencing judge found, among  other things, that the murder had been especially  heinous, atrocious or cruel, an aggravating  factor under Florida law. The judge compared  Barclay's conduct to that of the Nazis in  perpetuating a race war, and commented  extensively on his own experiences on the  battlefields of Europe. A plurality of the Court  affirmed that the Constitution did not prohibit  the trial judge from taking into account the  elements of racial hatred in the murder,  particularly because Barclay's desire to start a  race war was relevant to a number of statutory  aggravating factors. Barclay, 463 U.S at 949-50.


15
The Court expounded on this theme in Dawson v.  Delaware, 503 U.S. 159, 166-69 (1992), another  capital murder case involving a defendant who  belonged to a racist organization. After escaping  from prison, Dawson murdered a white woman in her  home in the course of stealing her money and her  car. During the sentencing phase of the trial,  the prosecution sought to admit into evidence  Dawson's association with the Aryan Brotherhood,  and the trial court entered a stipulation (over  Dawson's continuing objection) describing the  Aryan Brotherhood as a white racist prison gang  that originated in California in response to  other gangs of racial minorities. The stipulation stated that separate groups calling themselves  the Aryan Brotherhood existed in many state  prisons including Delaware. The jury also learned  that Dawson had the words "Aryan Brotherhood"  tattooed on his hand. After hearing other  aggravating evidence, the jury recommended a  death sentence for Dawson, a recommendation the  trial court was bound to impose. The Supreme  Court of Delaware affirmed the sentence,  reasoning that allowing evidence of character  where character is a relevant inquiry was  distinguishable from punishing a person for  expressing his views. See 503 U.S. at 163. The  United States Supreme Court acknowledged that it  had in Barclay upheld the consideration of  evidence of racial intolerance and subversive  advocacy where that evidence was relevant to the  issues involved. Dawson, 503 U.S. at 164. The  Court also reaffirmed its holding in United  States v. Abel, 469 U.S. 45 (1984), that the  Constitution does not erect a per se barrier to  the admission of evidence concerning one's  beliefs and associations at sentencing simply  because those beliefs and associations are  protected by the First Amendment. Dawson, 503  U.S. at 165. The Court drew the line in Dawson's  case, however, because the information presented  to the jury at Dawson's trial was so narrow as to  be irrelevant to any legitimate sentencing issue.  The Court stated that if other credible,  admissible evidence had been introduced to show,  as the prosecution originally intended to  demonstrate, that the Aryan Brotherhood was a  white racist prison gang associated with drugs  and violent escape attempts, and that advocates  the murder of fellow prisoners, it would be a  different case. In the narrow form in which the  information was introduced, the Court held, it  was irrelevant to the sentencing proceeding  because it was not, for example, tied in any  manner to the murder of a white woman. The crime  itself did not involve elements of racial hatred.  Dawson, 503 U.S. at 166.


16
Because the evidence of membership proved  nothing more than Dawson's abstract beliefs, the  Court held that the admission of that evidence  violated Dawson's First Amendment rights. 503  U.S. at 167. Had the prosecution proved that the  Aryan Brotherhood committed unlawful or violent  acts, or had even endorsed such acts, the  evidence might have been relevant to prove  aggravating circumstances, and thus would not  have been barred by the First Amendment. "In many  case, for example, associational evidence might  serve a legitimate purpose in showing that a  defendant represents a future danger to society."  503 U.S. at 166. Membership in an organization  that endorsed the killing of an identifiable  group, thus, would be relevant to a jury's  inquiry into whether the defendant will be  dangerous in the future. Id. The Court rejected  the government's argument that membership in the  group showed Dawson's "character," a relevant  sentencing factor under Delaware law. Without  evidence showing more than abstract beliefs, the  Court found that recasting the evidence as  relevant to "character" could not save it from  First Amendment scrutiny. The Court concluded  that the First Amendment prevents a state "from  employing evidence of a defendant's abstract  beliefs at a sentencing hearing when those  beliefs have no bearing on the issue being  tried." 503 U.S at 168.


17
The Court considered a slightly different  permutation of this theme in Wisconsin v.  Mitchell, 508 U.S. 476 (1993). There the Court  held that a penalty enhancement based on the  defendant's purposeful selection of his victim on  account of the victim's race was not prohibited  by the First or the Fourteenth Amendments.  Mitchell was part of a group of young black men  and boys who had become agitated during a  discussion of a movie that contained a scene in  which a white man beat a black youth. Following  this discussion, Mitchell instigated an attack on  a white youth who happened to walk past the  group. The group beat the white youth severely,  rendering him unconscious and in a coma for four  days. A Wisconsin statute allowed an enhancement  to a sentence for aggravated battery when the  defendant intentionally selected the victim  because of race, religion, color, disability,  sexual orientation, national origin or ancestry.  Mitchell challenged the enhancement on the ground  that it violated his First Amendment rights by  punishing him for his thoughts. The Wisconsin  Supreme Court agreed that the statute punished  what it deemed to be offensive thought because  the statute punished the motive behind the  selection of the victim, and therefore held the  statute unconstitutional. The United States  Supreme Court acknowledged that the statute  punished the same crime differently when the  victim was selected based on his or her race or  other protected status, and that the statute  enhanced the penalty based solely on the  defendant's discriminatory motive in selecting  the victim. The Court noted that motive has long  been held to be a relevant factor in determining  the length of a sentence, but that abstract  beliefs alone may not be taken into consideration  by a sentencing judge. Mitchell, 508 U.S. 487.


18
The Court upheld the Wisconsin statute because  the legislature believed that bias-inspired  conduct inflicted greater individual and societal  harm. For example, such crimes are more likely to  provoke retaliatory crimes, inflict distinct  emotional harms on their victims, and incite  community unrest. Mitchell, 508 U.S. at 487-88.


19
The State's desire to redress these perceived  harms provides an adequate explanation for its  penalty-enhancement provision over and above mere  disagreement with offenders' beliefs or biases.  As Blackstone said long ago, "it is but  reasonable that among crimes of different natures  those should be most severely punished which are  the most destructive of the public safety and  happiness."


20
Mitchell, 508 U.S at 498 (citing 4 W. Blackstone,  Commentaries, at 16). The Court concluded that  the First Amendment does not prohibit the  evidentiary use of speech to establish the  elements of a crime or to prove motive or intent.  508 U.S at 499. Kapadia also relies on R.A.V. v. City of St.  Paul, Minnesota, 505 U.S. 377 (1992), a case  invalidating a municipal ordinance that  criminalized as disorderly conduct the placing  upon public or private property of a symbol,  object or graffiti including, among other things,  a burning cross or a Nazi swastika "which one  knows or has reasonable grounds to know arouses  anger, alarm or resentment in others on the basis  of race, color, creed, religion or gender."  R.A.V. was a teenager who placed a burning cross  inside the fenced yard of a black family. The  Court acknowledged that the Minnesota Supreme  Court limited the application of the law to  fighting words that insult or provoke violence on  the basis of race, color, creed, religion or  gender. The Court found that this limitation was  inadequate to save the ordinance because it  discriminated not only on the basis of content  but also on the basis of viewpoint. Fighting  words unrelated to the protected topics remained  unregulated, and placards using fighting words in  support of racial tolerance, for example, were  permissible while opponents of tolerance were not  allowed to speak. R.A.V., 505 U.S. at 391-92.  Fighting words could be restricted, according to  the Court, because it was the non-speech element  of the words, the manner of speech, that such  laws sought to prohibit. This statute failed to  pass muster because it discriminated between  different categories of fighting words based on  content and viewpoint. 505 U.S. at 385-86.

B.

21
Kapadia, of course, argues that enhancing his  sentence for his post-trial anti-Semitic statements more closely tracks the  unconstitutional practices in R.A.V. and Dawson  than the permissible enhancements in Barclay and  Mitchell. Kapadia points to the sentencing  judge's discussion of his character and  rehabilitation potential as evidence that the  court sentenced him for holding offensive views  rather than for the allowable purpose of  punishing a crime motivated by racial  intolerance. In order to pass muster, according  to Kapadia, the court must first find that  Kapadia's offensive statements were tied to the  crime in a manner that is relevant to the  sentencing considerations. Kapadia contends he  was punished for his abstract beliefs as in  Dawson rather than because of his motive or  future dangerousness as in Barclay and Mitchell.  Kapadia concedes that had he painted on the walls  of the F.R.E.E. center the same slogans he later  uttered to the deputy, he would not be able to  make a constitutional challenge under the cases  we discuss above. He complains that because the  state court found no religious motivation on his  part in committing the offense, and because the  state court made no specific finding that he  selected the property because of the religious  affiliation of the owners, his case is  distinguished from Barclay. He admits that as  long as motive is being punished, the First  Amendment is not implicated. The state contends  that the court based the enhancement not on  improper considerations but rather on Kapadia's  criminal history.1 The state also maintains  that Kapadia's anti-Semitic statements were tied  to his crimes of burglary and arson of a Jewish  community center and therefore the court could  properly use the statements to enhance his  sentence, if for no other reason than because his  statements showed he lacked remorse. With that,  we return to the sentencing court's statements at  Kapadia's two sentencing hearings.


22
Kapadia's counsel argued to the court that  there was no evidence that the fact that this was  a Jewish organization had anything to do with  Kapadia's conduct. The court replied, "You're  absolutely right. That's why Deputy Bennett has  to be here." In other words, the court considered  the deputy's testimony to be evidence of a  connection between Kapadia's conduct and the  Jewish affiliation of the F.R.E.E. center.  Implicit in the court's comments is the finding  that Kapadia's conduct was tied to his anti-  Semitic bias, and that the court wanted the  deputy's statement on the record to lend support  to that finding. The sentencing judge, after  receiving the deputy's statement into evidence,  said that he took Kapadia's comments into  consideration because he believed Kapadia was  less likely to be reformed. He found Kapadia more  dangerous because he held anti-Semitic views and  attacked a Jewish community center. In other  words, because Kapadia held these views and had  committed a bias-motivated crime, there was a  greater probability he would not be  rehabilitated. The timing of Kapadia's slurs also  played into the sentencing court's analysis.  Because Kapadia's remarks came after his  conviction, the sentencing judge was free to  conclude that he lacked remorse and was less  likely to be rehabilitated. This is just another  way of stating that Kapadia presented a threat of  future dangerousness to the community, a proper  consideration under Barclay and Mitchell.  Finally, the court noted the tie between  Kapadia's behavior and crimes which occurred in  Europe during the rise of the Nazi regime. Under  Mitchell, this was also an appropriate  consideration, not barred by the First Amendment.


23
The court's comparison of Kapadia's criminal  destruction of the F.R.E.E. center to Nazi  attacks on synagogues removes any doubt that the  court enhanced Kapadia's sentence because it  believed that Kapadia's anti-Semitism was tied to  his crime. Unlike the defendants in R.A.V. and  Dawson, Kapadia was not punished for his abstract  beliefs but rather for committing a crime  motivated by bias against the very group of  people he maligned with his hateful invective. He  did not burglarize and set fire to a Walmart, for  example, or some other business with no  particular affiliation, and then utter anti-  Semitic slurs. Indeed, when the police questioned  Kapadia and asked him whether he knew what the  place was that he burglarized, he replied, "I  thought it was an office but I knew there was a  lot of Jewish people in there." R.18, Ex. A. The  fact that he did not spray his slogans on the  walls but rather uttered them after his  conviction is irrelevant. The court was free to  infer from his post-trial statements that he held  the same views at the time of the crime and was  motivated by those views in selecting the victim.  The First Amendment does not bar consideration of  these statements at sentencing when they are  indicative of motive and future dangerousness,  and we think the sentencing court's comments make  plain enough that it was considering the remarks  as such.


24
Our conclusion is bolstered by the findings of  the Illinois Appellate Court, whose  interpretation we owe deference as well. See  People v. Kapadia, 667 N.E.2d 577, 580 (Ill. App.  1 Dist. 1996). That court held that Kapadia's  statement provided insight into not only  Kapadia's character but also his lack of remorse  and rehabilitative potential. Lack of remorse and  poor rehabilitative potential are traditionally  very important considerations for any sentencing  judge, and the fact that the court's analysis of  these factors is based on the defendant's  otherwise protected speech does not render their  consideration constitutionally infirm. As the  Appellate Court noted, "[R]ead in context, the  court's remarks at sentencing weighed defendant's  statements in the context of his attitude towards  the victims, his lack of remorse, and lack of  potential for rehabilitation." 667 N.E.2d at 580.  Nothing in the Constitution prevents the  sentencing court from factoring a defendant's  statements into sentencing when those statements  are relevant to the crime or to legitimate  sentencing considerations. Because the sentencing  court was not punishing Kapadia for his abstract  beliefs but rather for his concrete application  of those misguided beliefs in criminal activity,  we affirm the judgment of the district court.


25
AFFIRMED.



Notes:


1
 Although the sentencing court could have enhanced  Kapadia's sentence under state law for his  criminal history, there is no indication in the  record that this is what the court actually did.  Because this theory is without support in the  record, we therefore reject the state's argument  that criminal history was an adequate basis for  the sentence enhancement.



26
MANION, Circuit Judge, concurring.


27
I concur with  the court's decision to affirm the district  court's denial of Kapadia's petition for habeas  corpus. But under the circumstances of this case,  there is no need to explore the question of  whether Kapadia was motivated by religious or  national origin bias when he committed the  burglary and arson. Evidence of one's beliefs and  associations is admissible where it is relevant  to the statutory aggravating factors. Barclay v.  Florida, 463 U.S. 939, 949-50 (1983). Kapadia's  bias was demonstrated in statements made after  his conviction and before sentencing. As the  trial judge noted, he took the vitriolic comments  into consideration at sentencing because he had  to "consider . . . the possibility of reformation  of the defendant . . . . [H]is virulant  antisemitism is indicative of the fact that he is  not likely to change his ways. He is not likely  to become a productive member of society." R,1,  Ex. C. at C25-28. And as the Illinois appellate  court indicated, this was an appropriate  consideration for sentencing. It concluded that  Kapadia's racial and religious slurs "provided  insight into defendant's character, mentality,  attitude, lack of remorse, and rehabilitative  potential." People v. Kapadia, 667 N.E.2d 577,  580 (Ill. App. Ct. 1996). This court's opinion  notes that nothing in the Constitution prevents  the court "from factoring a defendant's  statements into sentencing" when those statements  are relevant to legitimate sentencing  considerations. Because these are relevant  factors to consider upon sentencing, it is  unnecessary to explore whether Kapadia was  motivated by religious bias when committing his  crimes.

