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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUSTIN HOUGHTALING,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 1:08-cr-893

James T. Moody,

Judge.

O R D E R

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 antiSemitic content and failed to consider his personal history and characteristics.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
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.