NONPRECEDENTIAL DISPOSITION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 April 29, 2014
Decided May14, 2014
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 13-3739
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 3:13-cr-30066-DRH-1
THOMAS L. STANTON, David R. Herndon,
Defendant-Appellant. Chief Judge.
ORDER
Thomas Stanton appeals his 30-month sentence for possessing unregistered
destructive devices, 26 U.S.C. § 5861(d). He insists that his within-guidelines prison
term is excessive because, he asserts, the district court erroneously concluded that he
intended to commit harm with the devices. But the court’s finding is supported by
evidence introduced at sentencing by the government, plus the court adequately
considered the factors in 18 U.S.C. § 3553(a) and explained its reasons for imposing the
sentence. We thus affirm Stanton’s sentence.
In March 2013 authorities received an anonymous letter warning that Stanton
(who was 18 years old at the time) was building bombs at his house in Lebanon, Illinois.
No. 13-3739 Page 2
The following month authorities searched the house and discovered various
bomb-making materials. Stanton was charged with violating § 5861(d), and he pleaded
guilty in August 2013.
At the sentencing hearing in December 2013, the district court calculated a total
offense level of 19, which includes upward adjustments of 2 levels because the offense
involved a destructive device, see U.S.S.G. § 2K2.1(b)(3)(B), and 2 more levels because
the number of devices was at least 3 but fewer than 8, see id. § 2K2.1(b)(1)(A), less
3 levels for accepting responsibility, see id. § 3E1.1. After taking into account Stanton’s
criminal history category of I, the district court calculated an imprisonment range of
30 to 37 months.
In advocating a within-guidelines sentence, the government called an FBI agent
to testify at sentencing about the anonymous letter and the items discovered at
Stanton’s house. The letter, sent by a resident of Lebanon, describes Stanton as a
“mentally disturbed teenager” who had “booby-trapped” his bedroom, and flaunted
“hand grenade” type objects on his front lawn. The writer asked police to intervene to
“prevent a potential violent crime” like the shooting in Newtown, Connecticut.
According to the agent, authorities searched Stanton’s home with his father’s
permission while Stanton was at school. The agent testified that authorities had found
in Stanton’s bedroom instructions on utilizing nails in making explosive devices plus, in
the basement, a number of rusty nails. The search also had unearthed documents that
discussed “Specific Ideas of Where and How to Hide Things From Your Parents” and
“The Ten Commandments of Revenge.” Another document lists essential items for an
“anarchy bag,” including bombs made from empty CO2 cartridges.
Authorities discovered in Stanton’s house several notebooks filled with sketches
and handwritten notes. Although Stanton did not tell investigators that he wrote what
is in the notebooks, his attorney conceded the point. Writings in one notebook explain
how to “send a car to hell” using “CO2 bombs” and gasoline-soaked rags stuffed into
the exhaust pipe. That same notebook includes instructions on making “mailbox
bombs,” exploding light bulbs, fertilizer bombs, Molotov cocktails, napalm, bottle
bombs, “nail grenades,” and “tennis ball bombs.” Many of these handwritten
instructions include pointers on maximizing the shrapnel and other means of harming
people with homemade bombs. Authorities also discovered a handgun and
ammunition in the basement, a large machete in Stanton’s bedroom, and elsewhere in
No. 13-3739 Page 3
the house, empty CO2 cartridges, gunpowder, fuses, metal shavings, and two Molotov
cocktails.
According to the FBI agent, another of Stanton’s notebooks, which is titled
“Death Attack,” includes this handwritten note: “You stabbed me in the back, wearing
my dog like a pelt. I didn’t want to say this but I’m going to kill you anyway.” In a third
notebook Stanton had sketched swastikas and written homophobic, anti-Semitic, and
other hateful language.
In the presentence investigation report, the probation officer recounts the events
after Stanton’s house was searched. The authorities placed Stanton’s high school on
lockdown after discovering the explosive devices at his house but found nothing more
on campus. Stanton was transported to the police station, and during an interview he
described himself as a “mad man.” Stanton admitted making CO2 bombs, napalm, and
Molotov cocktails and detonating the explosive devices outside his house. He also
conceded interacting with white supremacist organizations from age 15 until he was 18.
Six of Stanton’s classmates confirmed that he had made bombs, sometimes in ways
intended to increase the shrapnel. They noted Stanton’s dislike for minority groups but
opined that he had not intended to hurt anyone. Stanton’s father reported to authorities
that his son and his friends often played video games, shot firearms, and dismantled
ammunition to make bombs. Stanton’s former step-mother told authorities that he had
gotten “out of control with his racist beliefs” after meeting a former member of a white
supremacist organization.
The probation officer also related that, according to a classmate, Stanton had
warned repeatedly in the fall of 2012 that he “would kill O’Fallon High School
students.” Although Stanton never disclosed a specific plan, he had bragged that his
part-time job as a school janitor gave him access to the school’s ventilation system and
roof. The student had reported Stanton’s statements to the school counselor.
After defense counsel had conceded the accuracy of the presentence report and
the government had highlighted the items discovered at Stanton’s house, the
government argued for a prison sentence of 33 months. Although Stanton had not
harmed anyone, the prosecutor asserted that his intent to do so was evident from the
record. Stanton’s attorney countered that the defendant should be sentenced to time
served plus supervised release or probation. The lawyer disputed that Stanton had
intended harm and claimed instead that the defendant had become obsessed with the
fantasy warfare video games he played with his friends and had tried to replicate
devices seen in those games. And though acknowledging Stanton’s description of
No. 13-3739 Page 4
himself as a “mad man,” his attorney opined that Stanton had meant he was “intensely
enthusiastic about his interests and hobbies.” Stanton’s attorney also asserted that the
notebook containing racial epithets was four years old, and that, “because of his stage of
life,” the defendant’s “ability to make good decisions was not fully developed when he
committed his offense, although his ability will improve with age.” His attorney
insisted that Stanton does not exhibit the typical personality traits associated with
criminal behavior; he enjoyed a stable relationship with his father, worked two
part-time jobs, and planned to marry his girlfriend, who recently had given birth to
their child. But nothing the lawyer said to explain Stanton’s bomb-making activities is
supported by evidence, not even testimony from the defendant. Stanton did speak at
sentencing and said he regretted his actions, but he did not offer a motive or
corroborate anything his lawyer had said in his sentencing memorandum or in court.
Before announcing Stanton’s sentence the district court discussed the nature and
circumstances of the offense. The judge highlighted evidence that Stanton possessed
instructions for making destructive devices and using them against people, harbored
hatred for minority groups, and had unrestricted access to his high school through his
janitorial position. That evidence, the court reasoned, allowed a reasonable inference
that Stanton “planned to do something destructive with these materials rather than
simply blowing them up to watch them.” The district court concluded that Stanton had
intended to cause harm with the destructive devices and sentenced him to 30 months’
imprisonment and 3 years of supervised release with a special condition mandating
mental-health treatment.
On appeal Stanton first contends that the district court committed clear error in
finding that he intended to commit harm with his homemade devices. Stanton asserts
that the only reasonable inference from the entirety of the evidence is that he possessed
the destructive devices for recreational purposes. The district court’s conclusion rests on
speculation, Stanton insists, because his father and former step-mother had told
authorities that he and his friends regularly played video games and participated in
military-style exercises, and his friends had opined that Stanton did not intend harm.
But district courts have “‘discretion to draw conclusions about the testimony
given and evidence introduced at sentencing,’” United States v. Halliday, 672 F.3d 462,
475 (7th Cir. 2012) (quoting United States v. Bradley, 628 F.3d 394, 400 (7th Cir. 2010)),
and we reverse only if we are “left with the definite and firm conviction that a mistake
has been made,” United States v. White, 737 F.3d 1121, 1142 (7th Cir. 2013) (internal
citation and quotation marks omitted); United States v. Cruz-Rea, 626 F.3d 929, 938 (7th
No. 13-3739 Page 5
Cir. 2010). The government presented sufficient evidence at sentencing to support the
district court’s conclusion that Stanton intended harm. Although authorities did not
uncover a specific plot to harm others, Stanton’s notebooks describe how to use the
destructive devices against individuals. In one notebook Stanton explains how to build
a bomb with a tennis ball and adds, “[W]hen you see a geek walking down the street,
give it a good throw, he will have a blast.” In that same notebook Stanton explains how
to fill a light bulb with napalm and recommends inserting it “into a socket frequently
used by the victim” so that when he “flips the switch, he will be in for a big surprise.”
None of this sounds “recreational,” and yet Stanton did not testify at sentencing or offer
any other evidence concerning his motivation for making destructive devices or his
handwritten ideas for what to do with those devices.
Stanton’s notebooks reflect that he harbored hatred toward several minority
groups. He not only referred to these groups in derogatory terms but also wrote about
causing them harm. And though Stanton’s attorney insisted in the district court, and
repeats to us, that Stanton’s hateful thoughts of hurting minorities had been written
several years earlier, Stanton himself did not back up his lawyer’s claim about the age of
his disparaging writings. Again, what is missing is evidence. See United States v. Vidal,
705 F.3d 742, 744 (7th Cir. 2013) (explaining that sentencing courts need not respond to
arguments in mitigation which lack factual basis); United States v. Chapman, 694 F.3d
908, 914 (7th Cir. 2012) (explaining that attorney’s representations are not evidence);
United States v. Diaz, 533 F.3d 574, 578 (7th Cir. 2008) (same). Moreover, counsel
sidestepped that Stanton kept the notebook, which undercut the lawyer’s implication
that the defendant had matured and moved beyond his offensive beliefs. Indeed,
Stanton’s former step-mother confirmed that he was “out of control with his racist
beliefs,” and Stanton himself admitted that he still was interacting with white
supremacist organizations at 18 (his age at the time of his arrest).
Stanton also contends that no matter what he intended to do with his destructive
devices, his 30-month prison term exceeds what’s necessary to serve the sentencing
goals under § 3553(a). But this within-guidelines sentence is presumed reasonable,
see United States v. Cheek, 740 F.3d 440, 455 (7th Cir. 2014); United States v. Diekemper, 604
F.3d 345, 355 (7th Cir. 2010), and the district court adequately connected the sentence to
the § 3553(a) factors. The district judge noted the serious nature of Stanton’s offense,
see 18 U.S.C. § 3553(a)(1), and concluded that the defendant intended to use his
homemade bombs to inflict harm. Discussing the need to protect the public, see id.
§ 3553(a)(2)©, the district judge stated, “I simply can’t in good conscience leave this
No. 13-3739 Page 6
young man on the street at this point.” And the judge noted that 30 months was
appropriate to send a “loud and clear message” to Stanton so that he could “understand
the seriousness of all of his actions.” See id. § 3553(a)(2)(A), (B).
AFFIRMED.