                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1376
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Christopher Austad,                     *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: November 13, 2007
                                Filed: March 5, 2008
                                 ___________

Before RILEY, BOWMAN, and SMITH, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       Christopher Austad (Austad) pled guilty to mailing threatening communications
in violation of 18 U.S.C. § 876(c). After calculating a sentencing Guidelines range
of 37 to 46 months imprisonment, the district court1 sentenced Austad to 84 months
imprisonment. Austad appeals, arguing the sentence is unreasonable, and that the
district court failed to consider Austad’s history and circumstances. We affirm.




      1
        The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
I.     BACKGROUND
       In March of 2006, Austad sent a letter from his prison cell at the South Dakota
State Penitentiary.2 The letter was addressed to United States District Court Judge
Richard Battey, and consisted of exceptionally graphic threats to Judge Battey.
Austad stated the letter was a response to Judge Battey’s sentencings of “a couple of
buddies of” Austad. Among other threats, Austad claimed he would bite off Judge
Battey’s fingers, shoot him in the knees and elbows to disable him, eat portions of his
nose and face, puncture his eyes with hot needles, and sodomize him using a metal rod
with a razor blade welded to it. Austad further threatened to shoot Judge Battey in the
back of the head “assassination style.” Finally, Austad threatened to “cut [Judge
Battey] up and eat what [Austad could] and burn the rest of [Judge Battey’s] body to
ashes.” Judge Battey and his wife felt threatened by the letter, and took steps to
improve their home security system.

       When later confronted by federal agents, Austad confirmed he drafted the letter,
and expressed his intent and willingness to carry out the threat. Austad claimed he
could cause harm to Judge Battey even from prison, and stated he had a murder-for-
hire plan in place. The plan, according to Austad, consisted of making a phone call
to a person outside of prison, and making a pre-arranged coded noise. Austad said the
recipient of the phone call would then contact another person who would carry out the
attack for $2,000.

        Austad entered a plea of guilty to a charge of mailing threatening
communications in violation of 18 U.S.C. § 876(c). In recommending the offense
level, the presentence report (PSR) calculated a base offense level of 12, and a number
of increases and reductions, for a total offense level of 21. The PSR assessed a
criminal history category of V. Combining the offense level of 21 and the criminal


      2
        A few days later, Austad wrote a letter to Senator Tim Johnson, threatening to
kill both Senator Johnson and President George W. Bush.

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history category of V, the PSR recommended a Guidelines range of 70 to 87 months
imprisonment. In arriving at the offense level of 21, the PSR included a 6 level
enhancement pursuant to United States Sentencing Guidelines Manual (U.S.S.G.) §
2A6.1(b)(1) (2006),3 for the specific offense characteristic of “conduct evidencing an
intent to carry out [threatening communications].” Austad objected to this
enhancement.

       At sentencing, the district court declined to impose the § 2A6.1(b)(1)
enhancement. The district court explained application note 1 of § 2A6.1(b)(1)
expressly states, for the enhancement to apply, only conduct that transpired before or
during the offense may be considered.4 The district court noted Austad’s statement
to the federal agents, evidencing an intent to carry out the threat, was not made until
after Austad was caught. The district court recognized the Guidelines cannot envision
every manner in which offense characteristics may occur, and stated, “frankly I think
the sentencing commission is wrong on that limitation on [§ 2A6.1(b)(1)], but that’s
what it says, so I am applying the guidelines as what the guidelines say.” The district
court thus granted Austad’s objection to the application of § 2A6.1(b)(1), struck the
6 level § 2A6.1(b)(1) enhancement, and utilized an offense level of 15 and a
Guidelines range of 37 to 46 months imprisonment. However, the district court
announced it would still consider Austad’s post-offense conduct, evidencing the intent
to carry out the threat, under the court’s overall consideration of the purposes and
goals of sentencing pursuant to 18 U.S.C. § 3553(a).




      3
       Austad was sentenced pursuant to the 2006 version of the manual. All
references to the Sentencing Guidelines thus refer to the 2006 edition.
      4
        The application note provides, “In determining whether subsection[]
(b)(1) . . . appl[ies], the court shall consider both conduct that occurred prior to the
offense and conduct that occurred during the offense . . . .” U.S.S.G. § 2A6.1(b)(1),
cmt. n.1.

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       In imposing its sentence, the district court did consider Austad’s post-offense
statement in determining a § 3553(a) variance. The district court also acknowledged
Austad had “for the first time, shown repentance . . . .” The district court further
considered Austad’s significant disciplinary history while incarcerated, including
“twelve major write-ups in seven months, some of a violent nature in the
penitentiary.” The district court emphasized “a need to protect the public from future
crimes of [Austad],” and explained it was “rel[ying] heavily upon that [consideration]
in reaching what it believes to be an appropriate sentence.” Thus, the district court
“[wound] up looking at the same range as if the 6 points [for the § 2A6.1(b)(1)
enhancement] were not deducted.” The district court thus imposed a sentence of 84
months imprisonment.

       Austad appeals, arguing the sentence is unreasonable, and the district court
failed to consider Austad’s history and circumstances.

II.     DISCUSSION
        “Regardless of whether the sentence imposed is inside or outside the Guidelines
range, the appellate court must review the sentence under an abuse-of-discretion
standard.” Gall v. United States, 552 U.S. ___, 128 S. Ct. 586, 597 (2007). We “must
first ensure that the district court committed no significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range.” Id.
Next, if “the district court’s sentencing decision is procedurally sound, the appellate
court should then consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Id. “When conducting this review, the
[appellate] court will, of course, take into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.” Id. “If the sentence
is within the Guidelines range, the appellate court may, but is not required to, apply

                                          -4-
a presumption of reasonableness.” Id. (citation omitted). On the other hand, “if the
sentence is outside the Guidelines range, the court may not apply a presumption of
unreasonableness.” Id. We “may consider the extent of the deviation, but must give
due deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” Id.

      A.     Reasonableness of the Sentence
      Austad relies heavily on past Eighth Circuit cases holding extraordinary
variances from the Guidelines range require extraordinary circumstances. See, e.g.,
United States v. Kendall, 446 F.3d 782, 785 (8th Cir. 2006) (citing United States v.
Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005). Because the district court imposed an
extraordinary upward variance (84 months, after a calculated Guidelines range of 36
to 46 months), Austad argues his sentence can only be justified by extraordinary
circumstances.

        Before Gall, Austad’s sentence might have presented a closer issue, particularly
in light of cases in which relatively similar conduct received a lighter sentence than
that imposed on Austad. See, e.g., United States v. Myers, 503 F.3d 676, 680 (8th Cir.
2007) (involving a sentence of 60 months imprisonment for mailing a death threat to
a federal judge).5 However, Gall overruled our “extraordinary circumstances”
analysis. See Gall, 128 S. Ct. at 595-96. In light of Gall, we must recognize, although
it is “uncontroversial that a major departure should be supported by a more significant
justification than a minor one,” id. at 597 (emphasis added), the justification need not
be precisely proportionate. Id. at 594-95 (expressly rejecting this court’s requirement
of “extraordinary circumstances” as well as any mathematical proportionality
assessment). The Supreme Court in Gall does conclude that “a district judge must

      5
       We note, however, “[a] sentence is not unreasonable simply because it creates
some disparity between sentences,” Myers, 503 F.3d at 686 (citation omitted), and
Myers represented “an unusual case with an unusual defendant.” Id. at 687 (citation
omitted).

                                          -5-
give serious consideration to the extent of any departure from the Guidelines and must
explain his conclusion . . . an unusually lenient or an unusually harsh sentence is
appropriate in a particular case with sufficient justifications.” Id. at 594.

       Comparing Austad’s sentence to the one imposed in Myers, it becomes clear
the district court, in sentencing Austad, supported the upward variance with sufficient
and proportionate justifications. The district court noted it could not ignore Austad’s
offense conduct. Austad’s threats were extreme. The district court further considered
Austad’s significant disciplinary record, including “twelve major write-ups in seven
months, some of a violent nature in the penitentiary.” Additionally, the district court
noted the likelihood Austad would continue to re-offend by threatening other
members of society, and the court announced it was “rel[ying] heavily” upon this
consideration.6 The district court correctly recognized the Guidelines do not always
account for every factual circumstance which could arise in a given case. As the
Supreme Court recently re-explained in a different context, although the district court
must first properly calculate the Guidelines range, and consider this calculation in
determining an appropriate sentence, the district court may consider whether an in-



       6
        Austad also takes issue with the district court’s reliance on his likelihood to re-
offend, arguing Austad had no ability to carry out his threats, because he had no
access to a telephone, and no money to be able to pay someone on the outside to
commit the threatened acts. First, this fails to recognize Austad was not convicted of
actually harming Judge Battey, but of threatening him. Second, the characteristics
noted by the district court indicate a significant likelihood that, given an opportunity
to do so, Austad will continue to make threats against members of society. Whether
or not Austad 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. As this case amply demonstrates, Austad committed this crime even while
incarcerated. It is not unreasonable to conclude such threats would occur, and
potentially with significantly greater frequency, if Austad were not in prison. The
district court, therefore, did not err in determining a harsher sentence would help
promote the goal of protecting society.

                                            -6-
Guidelines sentence fails appropriately to serve the objectives of sentencing. See
Kimbrough v. United States, 552 U.S. ___, 128 S. Ct. 558, 564, 574-75 (2007).

       In sentencing Austad, the district court calculated the sentencing range by
employing the language of the application note to § 2A6.1(b)(1). This resulted in a
shorter Guidelines range. However, had Austad expressed his intent to carry out the
threat contemporaneously with making the threat, Austad could have been subject to
the 6 level increase. See U.S.S.G. § 2A6.1(b)(1), cmt. n.1. The district court
determined a similar increase was warranted pursuant to § 3553(a) in order to promote
the goals of deterrence and “particularly to protect the public from further crimes of
Mr. Austad.” The district court’s conclusion that Austad’s conduct was just as bad as
that encompassed by § 2A6.1(b)(1), and thus deserving of a similar sentence, is
logical and reasonable.

       Finally, Austad argues the district court failed to consider properly the
§ 3553(a) factors by not considering Austad’s history and circumstances, including
Austad’s history of mental illness. First, we note the district court heard Austad’s
attorney explain Austad’s history and circumstances. “[W]e do not require a district
court to categorically rehearse each of the section 3553(a) factors on the record when
it imposes a sentence as long as it is clear that they were considered.” United States
v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006) (citation omitted).7 Second, “[t]he fact
that the appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Gall, 128 S. Ct. at

      7
        Austad’s contention that his mental illness demonstrates he is unlikely to ever
carry out his threats cuts both ways. On one hand, Austad’s mental illness may
evidence nothing more than an extreme impulsiveness and pattern of self-destructive
behavior. On the other hand, Austad’s mental illness may also evidence a kind of
impulsiveness which might compel him to act upon these threats at some point. In
any event, the district court is in a much better position to make such determinations,
and we are not free to substitute our judgment for that of the district court when the
district court’s determinations are not unreasonable. See Gall, 128 S. Ct. at 597.

                                           -7-
597. As the Supreme Court reminds us, “[t]he sentencing judge is in a superior
position to find facts and judge their import under § 3553(a) in the individual case.
The judge sees and hears the evidence, makes credibility determinations, has full
knowledge of the facts and gains insights not conveyed by the record.” Id. (citation
omitted). Given these considerations, we cannot say the district court abused its
discretion in sentencing Austad. Even if Austad’s sentence were considered
“unusually harsh,” the district court explained the sentence with “sufficient
justifications.” See id. at 594.

III.   CONCLUSION
       Austad’s sentence is affirmed.
                       ______________________________




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