United States v. Lucas

In the

United States Court of Appeals
For the Seventh Circuit

No. 11-1512

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

T REVOR L UCAS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 09-cr-150—William M. Conley, Chief Judge.

A RGUED O CTOBER 20, 2011—D ECIDED F EBRUARY 29, 2012

Before C UDAHY, K ANNE, and SYKES, Circuit Judges.
K ANNE, Circuit Judge. Following a dispute over
stolen “gold” in an online video game, Trevor Lucas
devised an incredibly detailed and disturbing plan
over the course of a year and a half to get revenge on
the would-be “thief,” CG, a minor living with his
mother in Wisconsin. Lucas discovered CG’s home ad-
dress, drove twenty hours to CG’s home, and imper-
sonated a law enforcement officer in an attempt to lure
2 No. 11-1512

CG out of the house and kidnap him. When CG’s
mother refused to allow Lucas into the house, he
attempted to gain entry by pointing a handgun directly
at her face. But CG’s mother quickly slammed the
front door before he could react, and Lucas fled while
she called police. He was eventually arrested in his
home state of Massachusetts. Lucas pled guilty to bran-
dishing a firearm during a crime of violence and the
district court sentenced him to 210 months’ imprison-
ment. He now appeals his sentence, presenting a barrage
of arguments claiming the district court committed error
at sentencing and the sentence was substantively unrea-
sonable. We find none of these contentions meritorious,
and accordingly affirm Lucas’s sentence.

I. B ACKGROUND
Lucas became acquainted with CG while playing an
online video game, World of Warcraft. While playing
the game, Lucas began sending sexual messages to the
minor asking CG to send naked pictures of himself. CG
refused, and placed Lucas on a World of Warcraft
“ignore list.” But Lucas became fixated on CG, and
found other means to contact him. He offered CG $5,000
in online “currency” if CG would remove him from the
ignore list. CG agreed, but soon after Lucas again began
sending him sexual messages. CG again placed Lucas on
the ignore list, but this only served to infuriate Lucas.
Lucas began sending threatening messages, telling
others that he intended to kill CG, and demanding the
return of his “gold.” Although CG reported Lucas’s
No. 11-1512 3

online threats to the Madison Police Department, no
charges were brought against Lucas.
Lucas concocted a detailed plan to kidnap CG. He
began by building a massive arsenal of weapons rivaling
that of a local police department, including rifles, hand-
guns, stun guns, canisters of pepper spray, handcuffs,
restraints, and other various law enforcement and
military equipment. He then learned CG’s home address
by contacting another minor in Madison, whom he
had also met while playing video games online. The
minor was willing to divulge the address in exchange for
$500 (in actual, rather than virtual, currency). Finally,
Lucas took steps to prepare his vehicle for the kidnapping.
Lucas had his car outfitted to resemble a police vehicle,
with large antennas in the rear and a pullbar in the
front of the vehicle. Lucas then attempted to have an
automotive shop remove the emergency release latch
from the trunk of his car, presumably so that he could
transport CG without fear of his escape. When he ex-
amined the car, the shop employee noticed that the
inside of the trunk had been lined with a clear plastic
cover.1 The employee then refused to remove the
release latch from the trunk because doing so was ille-

1
At sentencing, both sides vehemently disputed the signifi-
cance of the plastic lining. The government argued that the
plastic lining was evidence that Lucas intended to transport
a body, while the defense argued that Lucas placed the lining
in his car because he helped his mother carry groceries to
centers for the homeless. The district court expressly did not
factor the presence of the plastic lining into its decision.
4 No. 11-1512

gal. Nevertheless, Lucas managed to do so himself, and
he moved on to executing his plan to kidnap CG.
On August 25, 2009, Lucas began driving twenty
hours from his home in Massachusetts to CG’s home
in Wisconsin. When he arrived, CG’s mother, rather than
CG, answered the door. Lucas identified himself as an
agent of the “National Security Recruiting Department,”
and demanded to speak with CG. CG’s mother, taking
notice of Lucas’s generally unkempt appearance and
untied shoelaces, grew doubtful that he belonged to
this vaguely named “law enforcement agency.” She
refused to admit Lucas into the home, at which point
Lucas retrieved a handgun from his car and pointed it
directly at her face. In a panic, CG’s mother slammed
the front door before Lucas could react. Lucas then fled
in his vehicle back to his home in Massachusetts.
Lucas was arrested two days later in Massachusetts.
Officers recovered two loaded handguns, ammunition,
two stun guns, three canisters of pepper spray, seven
pairs of handcuffs, twenty-eight flex restraints, three rolls
of duct tape, one box of latex gloves, three military style
knives, and other miscellaneous items from the trunk of
his car. In a wooded area outside of Lucas’s home,
officers discovered a cave where Lucas had stockpiled
even more weapons. Inside the cave, officers also found
two holes Lucas had dug measuring five-feet by ten-
feet by two-feet.2 At the time of his arrest, Lucas was on

2
Both sides also disputed the significance of the holes. The
government argued that the holes were meant to be used as
(continued...)
No. 11-1512 5

conditional release in Massachusetts due to a previous
arrest for illegal possession of large-capacity firearms
in April of 2009.
Lucas was charged with unlawfully transporting
a firearm with the intent to commit a felony, 18
U.S.C. § 924(b); attempted kidnapping, 18 U.S.C.
§ 1201(a)(1), (d); and intentionally brandishing a gun
during and in relation to a crime of violence, 18 U.S.C.
§ 924(c). On December 15, 2010, pursuant to a written
plea agreement, Lucas pled guilty to § 924(c)(1)(A)(ii),
and the other charges were dismissed. The plea agree-
ment provided that Lucas faced a mandatory minimum
seven-year term of imprisonment, with a maximum
term of life imprisonment. It also stated that the court
was free to impose any sentence up to and including
the statutory maximum.
The presentence investigation report (“PSR”) was
docketed on January 19, 2011. A sentence for a § 924(c)
conviction ordinarily runs consecutively with the sen-
tence for a conviction of an underlying offense. But
because the underlying offense of kidnapping was dis-
missed pursuant to the plea agreement, the PSR in-
dicated that the applicable guidelines range for the
§ 924(c) violation was the statutory minimum of seven

2
(...continued)
a grave, while the defense maintained the purpose of the
holes was to conceal the weapons hidden in the cave. Again,
the district court expressly did not factor the presence of
the holes into its decision.
6 No. 11-1512

years under U.S.S.G. § 2K2.4(b). Nonetheless, the PSR
noted that had Lucas pled guilty to the dismissed count
of attempted kidnapping, he would have had an addi-
tional guidelines range of seven to nine years. The
PSR also stated that an upward variance from the
guidelines sentence could be supported by U.S.S.G.
§ 4A1.3, inadequacy of criminal history, and/or by
U.S.S.G. § 5K2.0(a)(2), (3), circumstances of a kind and to
a degree not adequately taken into consideration. Lucas
filed factual objections to the PSR and filed a sentencing
memorandum containing a report by Dr. Jeffrey Marcus.
In the report, Dr. Marcus stated that Lucas did not
possess the capacity to understand the significance of
his behavior at the time of his offense because he
suffers from various psychological conditions, including
Asperger’s Syndrome, Attention Deficit Hyperactive
Disorder, and Bipolar Disorder. He also concluded that
Lucas’s criminal conduct was caused by a manic episode
triggered by a new prescription medicine, Provigil.
Lucas was sentenced on February 23, 2011. The district
court began by calculating the applicable guidelines
sentence for the § 924(c) conviction as the mandatory
minimum of seven years.3 The court stated that although
Lucas’s relevant conduct in the dismissed attempted
kidnapping count was not factored into this calculation,

3
According to § 2K2.4(b), the guidelines sentence for
violating § 924(c) is “the minimum term of imprisonment
required by statute.” U.S.S.G. § 2K2.4(b). A conviction for
§ 924(c)(1)(A)(ii) requires a sentence of “not less than 7 years.”
18 U.S.C. § 924(c)(1)(A)(ii).
No. 11-1512 7

it nevertheless would take this conduct into con-
sideration when deciding an appropriate sentence. The
district court then determined what guidelines range
would have applied had Lucas been found guilty of
attempted kidnapping under U.S.S.G. § 2X1.1(a). The
guidelines range for the underlying offense of kidnap-
ping would ordinarily have been 87 to 108 months, fol-
lowed by the seven-year consecutive term for the viola-
tion of § 924(c), for a total guidelines range of 171 to 192
months. Afterwards, the court reiterated that the starting
point under the guidelines was the seven-year mini-
mum sentence.
The district court then went into great detail discussing
the troubling facts involved in the case. The court high-
lighted the year and a half Lucas spent making threats
and preparing to kidnap CG, and was particularly dis-
turbed by facts indicating that he may have intended to
kill CG. The court also discussed Lucas’s history of
mental health problems, including Dr. Marcus’s report
and Lucas’s parents’ significant but ultimately futile
efforts to assist their son. The district court ultimately
rejected Dr. Marcus’s finding that the criminal conduct
was caused by a manic episode because Lucas began
making threats and preparing to kidnap CG well before
he was prescribed Provigil.
The district court then announced its decision to vary
upward from the guidelines sentence of seven years.
The court found that an upward variance pursuant to
U.S.S.G. § 4A1.3 was warranted because Lucas committed
this offense while on conditional release following his
8 No. 11-1512

arrest for possession of large-capacity firearms. The
court also found that under U.S.S.G. § 5K2.0, there were
existing aggravating factors of a kind and to a degree
not adequately taken into consideration because rele-
vant conduct—the dismissed attempted kidnapping
charge—was not otherwise considered in the guide-
lines sentence of seven years. Finally, the court imposed
a 210-month sentence, followed by a five-year term of
supervised release. The court found that the sentence
would serve to hold Lucas accountable, serve as a deter-
rent, protect the community, provide the opportunity
for rehabilitative programs, and achieve parity with
sentences of similarly situated offenders.
Lucas appeals his sentence, arguing that the district
court committed a host of errors at sentencing and that
the 210-month sentence was substantively unreasonable.
We take each of these arguments in turn.

II. A NALYSIS
On appeal, we review a district court’s sentence for
reasonableness, United States v. Booker, 543 U.S. 220, 260-62
(2005), under an abuse of discretion standard, Gall v.
United States, 552 U.S. 38, 46 (2007). “We presume that a
sentence within a properly calculated guidelines range
is reasonable, but there is no corresponding presump-
tion of unreasonableness for a non-guidelines sentence.”
United States v. Reyes-Hernandez, 624 F.3d 405, 409 (7th
Cir. 2010) (internal quotation marks omitted). Moreover,
“we review de novo a district court’s interpretation of
No. 11-1512 9

the guidelines.” Id. (citing United States v. Diekemper, 604
F.3d 345, 355 (7th Cir. 2010)).
Our review of sentencing decisions proceeds through
a two-step inquiry. United States v. Moreno-Padilla, 602
F.3d 802, 810 (7th Cir. 2010). First, “we ensure that the
district court did not commit any significant procedural
error, examples of which include failing to calculate, or
improperly calculating, the applicable Guidelines range;
treating the Guidelines as mandatory; or failing to
consider the 18 U.S.C. § 3553(a) factors.” Id. (internal
quotation marks omitted). Second, “if we determine
there was no procedural error, we then examine ‘the
substantive reasonableness of the sentence’ itself.” Reyes-
Hernandez, 624 F.3d at 409 (quoting Gall, 552 U.S. at 51).

A. Procedural Error
A sentencing proceeding should begin with a calcula-
tion of the applicable guidelines, Gall, 552 U.S. at 49, and
Lucas concedes that the district court correctly cal-
culated the applicable guidelines sentence of 84 months
under U.S.S.G. § 2K2.4. Nevertheless, Lucas argues
that the district court committed a number of pro-
cedural errors before ultimately imposing a sentence
of 210 months’ imprisonment.
Lucas presents three challenges to the district court’s
application of the Sentencing Guidelines. First, Lucas
argues that the district court impermissibly calculated
what the applicable guidelines would have been for
the dismissed count of attempted kidnapping. Although
10 No. 11-1512

the district court was free to consider this conduct,
Lucas asserts that the court went too far because he
was essentially sentenced as though he pled guilty to
attempted kidnapping, despite the charge having been
dismissed pursuant to the plea agreement. This, he
claims, disregards the terms of U.S.S.G. § 2K2.4 by im-
posing a cross-reference provision not contained within
the sentencing guidelines.
Thus, Lucas argues that although the district court is
free to punish a defendant more severely on the basis
of relevant conduct, it is unable to calculate what the
applicable guidelines sentence would have been for a
dismissed offense. We disagree.
A district court may consider a wide range of conduct
at sentencing, including acquitted conduct and dis-
missed offenses. See United States v. Black, 625 F.3d 386, 394
(7th Cir. 2010) (“ ‘A jury’s verdict of acquittal does not
prevent the sentencing court from considering conduct
underlying the acquitted charge, so long as that conduct
has been proved by a preponderance of the evidence.’ ”)
(quoting United States v. Watts, 519 U.S. 148, 157 (1997)
(per curiam)). Indeed, 18 U.S.C. § 3661 provides that
“[n]o limitation shall be placed on the information con-
cerning the background, character, and conduct of a
person convicted of an offense which a court of the
United States may receive and consider for the purpose
of imposing an appropriate sentence.”
District courts enjoy discretion in determining what
information to consider at sentencing, and Lucas cites
no authority for the distinction that he urges us to
No. 11-1512 11

adopt, nor do we see the logic in such a distinction. The
district court was free to punish Lucas more severely on
the basis of relevant conduct, and found that he had
committed the underlying offense of attempted kidnap-
ping by a preponderance of the evidence. By calculating
what guidelines sentence would have applied, the
district court merely attempted to provide a guidelines-
related framework to take account of the dismissed
offense. Perhaps this caused some confusion, but the
court committed no procedural error. Indeed, the district
court reiterated that the applicable guidelines sentence
was seven years, and that would be the starting point in
its determination of an appropriate sentence.
Next, Lucas asserts that even if it was permissible for
the district court to calculate the applicable guidelines
sentence for attempted kidnapping, the court nevertheless
incorrectly calculated the offense level. Lucas claims that
the district court erred in finding that a three-level reduc-
tion under U.S.S.G. § 2X1.1(b) was unavailable. Under
§ 2X1.1(b)(1), a three-level reduction is provided for
crimes that were attempted but not completed. However,
this reduction only applies if the defendant had not
“completed all the acts the defendant believed neces-
sary for successful completion of the substantive offense
or the circumstances demonstrate that the defendant
was about to complete all such acts but for appre-
hension or interruption by some similar event beyond
the defendant’s control.” U.S.S.G. § 2X1.1(b)(1).
The district court found that the three-level reduction
would not have applied for attempted kidnapping be-
12 No. 11-1512

cause Lucas carried out all the acts he believed necessary
to complete the underlying offense of kidnapping. This,
Lucas argues, was procedural error because he never
even saw CG—CG’s mother closed the door on Lucas
after he pointed a gun at her—and therefore he never
completed all of the acts he believed necessary to kidnap
CG. He would need to have brought CG to his car
and forced him into the trunk to have completed all of
the acts necessary; this Lucas did not do, and thus he
was entitled to a three-level reduction.
Lucas’s logic mistakenly relies on his victim’s responses,
rather than on the defendant’s own acts, which are the
only thing the guidelines mention. In United States v.
Emmett, 321 F.3d 669 (7th Cir. 2003), we found that the
three-level reduction in § 2X1.1 did not apply to a defen-
dant who attempted a bank robbery on two separate
occasions by walking into a bank and handing the
teller a note demanding money. Both times, the tellers
refused to comply with his demands. Although he did
not receive any money, we held that the fact that the
defendant failed “does not mean that he did not think
he was doing everything he needed to do in order to
succeed.” Id. at 673-74. Likewise, Lucas thought that he
did everything necessary to complete the kidnapping:
he drove to CG’s home, pointed a gun at CG’s mother’s
face, and demanded that CG come to the door. He
would have succeeded, but for the quick thinking of
CG’s mother. This is enough to disqualify him for the
downward adjustment provided by § 2X1.1.
Lucas further argues that the district court committed
procedural error by applying a prohibited upward depar-
No. 11-1512 13

ture based on § 4A1.3, inadequacy of criminal history.
According to § 2K2.4, when a district court calculates
the sentence for a conviction of § 924(c), Chapter 4
“shall not apply to that count of conviction.” U.S.S.G.
§ 2K2.4(a). After discussing the fact that Lucas was on
conditional release in Massachusetts for illegal posses-
sion of firearms, the district court stated that “this egre-
gious conduct . . . warrants an upward variance pursuant
to section 4A1.3.” (Sent. Tr. at 29.) Because such a depar-
ture was prohibited, Lucas argues he is entitled to
resentencing.
The concept of departures was rendered obsolete
when the guidelines were made advisory in Booker,
543 U.S. at 226-27. See United States v. Miranda, 505 F.3d
785, 792 (7th Cir. 2007). But district courts can still take
guidance from the departure provisions in the guide-
lines and apply them by way of analogy when assessing
the § 3553(a) factors. See United States v. Guyton, 636
F.3d 316, 320 n.2 (7th Cir. 2011); United States v. Schroeder,
536 F.3d 746, 756 (7th Cir. 2008). The district court’s duty
is to properly calculate the guidelines range and then
come up with a reasonable sentence under § 3553(a).
United States v. Munoz, 610 F.3d 989, 994 (7th Cir. 2010).
The district court did not commit procedural error
because it correctly calculated the applicable guide-
lines sentence of seven years for the conviction of § 924(c).
The court then appropriately considered and explained
the relevant § 3553(a) factors when determining whether
to apply a sentence outside the guidelines range, and
applied § 4A1.3 by way of analogy. Lucas was out on
14 No. 11-1512

bond for illegal possession of weapons in Massachusetts
when he committed the present offense, and the dis-
trict court could have considered this same fact without
reference to § 4A1.3. See United States v. Jackson, 547 F.3d
786, 793 (7th Cir. 2008) (“[A]fter Booker, a sentencing
court is no longer required to follow § 4A1.3 when im-
posing an above-guidelines sentence.”). The district
court was attempting to ground its analysis in the guide-
lines and committed no error in doing so.

B. Reliable Evidence
Lucas next argues that the district court erred by sen-
tencing him based on facts it failed to find by a preponder-
ance of the evidence. Sentencing courts have discretion
to draw conclusions about the testimony given and evi-
dence introduced at sentencing. United States v. England,
555 F.3d 616, 622 (7th Cir. 2009). Due process requires
that sentencing determinations be based on reliable
evidence, rather than speculation or unfounded allega-
tions. United States v. Santiago, 495 F.3d 820, 824 (7th Cir.
2007). “Evidence will satisfy this requirement if it bears
sufficient indicia of reliability to support its probable
accuracy.” Id. (internal quotation marks and punctuation
omitted). Generally, facts considered at sentencing must
be proved by a preponderance of the evidence. England,
555 F.3d at 622.
Lucas argues that the district court based its lengthy
sentence on the sheer speculation that had CG answered
the door—rather than his mother—Lucas would have
kidnapped and harmed him. Lucas maintains that he
No. 11-1512 15

only intended to scare CG, not kidnap or harm him, and
thus there was insufficient evidence for the district court
to punish him on this basis. Moreover, Lucas argues
that, in any event, the district court failed to find that
Lucas would have kidnapped CG by a preponderance
of the evidence. In support of this contention, Lucas
points to a number of statements the district court
made when discussing the egregious facts of the case.
For example, the district court stated, “I don’t know what
would have happened had someone else answered the
door.” (Sent. Tr. at 27.) Because the district court did
not know what would have happened, Lucas posits,
it failed to find that he intended to kidnap CG by a pre-
ponderance of the evidence.
Lucas’s argument is unavailing. It was not specula-
tion that Lucas wanted to kidnap CG; there were an
abundance of facts supporting this finding. Lucas told
others that he planned to kill CG, he paid someone $500
to learn CG’s home address, he removed the emergency-
release latch from the trunk of his car so that CG
would have no means of escape, he drove to CG’s home
armed with an entire arsenal, and he pointed a gun at
CG’s mother’s face after demanding to see CG.
Certainly, these facts allowed the district court to infer
that Lucas intended to do more than simply scare CG.
Lucas conflates the worry of the district court that
Lucas planned to kill CG with the court’s finding that
Lucas attempted to kidnap CG. Some of the facts, espe-
cially those contested by Lucas at sentencing, suggested
that Lucas may have planned to kill CG and bury his
16 No. 11-1512

body in the holes Lucas prepared outside his home
in Massachusetts. This thought deeply disturbed the
district court, which is why it reiterated that it did not
know what would have happened had CG answered
the door. But the court made clear that it was not basing
its sentence on this speculative possibility, stating that
it was “almost beside the point whether [the holes in
the cave near Lucas’s home] are graves.” (Sent. Tr. at 10.)
Rather, what influenced the court’s decision, and what
the district court found by a preponderance of the evi-
dence, was that Lucas attempted to kidnap CG. As we
discussed above, the district court went so far as to
find that Lucas completed all the steps he believed rea-
sonably necessary to complete the underlying offense
of kidnapping. The court did not rely on speculation
in sentencing Lucas.

C. Diminished Capacity
Lucas next claims that the district court erred by
treating his diminished capacity as an aggravating factor
rather than a mitigating factor. A district court is not
required to accept a defendant’s argument that a miti-
gating factor warrants a lower sentence, United States
v. Garthus, 652 F.3d 715, 718 (7th Cir. 2011), but must
address “all of a defendant’s principal arguments that
are not so weak as to not merit discussion,” United States
v. Johnson, 643 F.3d 545, 549 (7th Cir. 2011) (internal
quotation marks omitted). Diminished capacity is a
“ground of recognized legal merit for seeking a lesser
sentence,” United States v. Portman, 599 F.3d 633, 637
No. 11-1512 17

(7th Cir. 2010) (internal quotation marks omitted), and
refers to cognitive or psychological limitations that
fall short of insanity, severe mental retardation, or demen-
tia, Garthus, 652 F.3d at 717. These limitations contribute
to the crime for which a defendant is being sentenced
by “reducing—though not eliminating—his ability to
appreciate the wrongfulness of his acts, or by reducing
his ability to avoid committing them.” Id.
At sentencing, Lucas argued that he should receive
a reduced sentence because he committed the offense
while suffering from diminished capacity due to a
number of psychological conditions, most notably
Asperger’s Syndrome. These conditions, Lucas argued,
did not allow him to appreciate the significance of his
behavior. Moreover, the report submitted by Dr. Marcus
reasoned that Lucas’s behavior was a result of a manic
episode, likely triggered by a prescription for Provigil.
The report speculated that Lucas would never have
planned or carried out his road trip, save for the manic
episode. The district court rejected Lucas’s arguments,
pointing out that “most people with Asperger’s or
bipolar disorders do not act out criminally at all, much
less harm themselves and travel across the country
to kidnap a child.” (Sent. Tr. at 30-31.) The district court
also disagreed with the conclusions of Dr. Marcus’s
report, noting that Lucas took extensive steps to plan
the kidnapping long before he was prescribed Provigil.
Lucas now contends that the district court treated the
psychological conditions underlying his purported dimin-
ished capacity as an aggravating factor and increased
18 No. 11-1512

his sentence on this basis. For example, the district
court stated: “[M]ost bipolar people don’t, even in a
manic episode, don’t go off and endanger others. I mean,
to me, it cuts at least the other way as much as it does
that I should find it a mitigating circumstance.” Id. at 16.
Lucas construes the court’s assertion that “it cuts at
least the other way” to mean that the district court neces-
sarily treated the condition as an aggravating factor.
Moreover, immediately prior to announcing Lucas’s
sentence, the district court doubted whether “Lucas
appreciates the impact of his actions even now” and stated
that “an incapacity to understand the significance of
his actions[] fundamentally describes what led to this
tragedy.” Id. at 31. These statements, Lucas argues, dem-
onstrate that the district court treated Asperger’s Syn-
drome and his other psychological conditions as an
aggravating factor.
Lucas, however, mischaracterizes the district court’s
statements. These statements do not demonstrate that
the court was treating his psychological conditions
as an aggravating factor. Instead, the court used these
statements to reject Lucas’s argument that he should
receive a reduced sentence due to his purported dimin-
ished capacity. See Portman, 599 F.3d at 638 (“Of course . . .
a district court could find diminished capacity but
choose not to reduce a sentence. For example, a court
could find that the defendant would remain dangerous
after treatment.”). The district court did not believe a
reduced sentence was warranted because Lucas com-
mitted the offense despite his parents’ extensive efforts
to help their son control his behavior. For example,
No. 11-1512 19

the district court noted that Lucas was “enrolled in coun-
seling, special education and life skills programs,” his
parents provided further support “through behavioral
modification programs at home,” and that “it’s hard to
think of what else two parents could have done for a
son they loved who had a profound disorder.” (Sent. Tr.
at 22.) Thus, given the extent of personal and professional
support Lucas received throughout his troubled life,
even if Lucas’s purported diminished capacity con-
tributed to the commission of the crime, a reduced sen-
tence was not appropriate because Lucas would likely
remain dangerous after treatment.
In any event, the court also made clear that it did not
believe that individuals suffering from Asperger’s were
more likely to engage in criminal behavior. Thus, there
is no basis to conclude that the district court treated
Lucas’s diminished capacity as an aggravating factor,
rather than reasonably rejected Lucas’s argument and
refused to reduce his sentence.4 See United States v. Lange,

4
Even if the district court had treated Lucas’s diminished
capacity as an aggravating factor, it is not clear that this neces-
sarily would have been impermissible. See Garthus, 652 F.3d
at 717-18 (“From a ‘just deserts’ standpoint, diminished
capacity argues for a lighter sentence, but from the standpoint
of preventing recidivism it argues for a heavier one. . . . [U]nder
the Booker regime a sentencing judge can adopt his own
penal philosophy. And so he can disregard the guidelines’
classification of diminished capacity as a mitigating factor,
regard it as an aggravating factor, or regard it as a wash.”
(continued...)
20 No. 11-1512

445 F.3d 983, 986 (7th Cir. 2006) (upholding sentencing
court’s rejection of diminished capacity based on defen-
dant’s “Asperger’s-like” syndrome).

D. Rehabilitative Purposes
Lucas next claims that the district court lengthened
his sentence to promote his rehabilitation. In Tapia v.
United States, 131 S. Ct. 2382 (2011), the Supreme Court
held that the Sentencing Reform Act precludes a district
court from imposing or lengthening a prison term in
order to promote a criminal defendant’s rehabilitation.
See 18 U.S.C. § 3582(a) (instructing sentencing courts to
“recogniz[e] that imprisonment is not an appropriate
means of promoting correction and rehabilitation”). In
so holding, the Court remanded for resentencing be-
cause the district court specifically selected the length
of the sentence to ensure that the defendant would be
eligible to participate in a 500-hour drug-treatment pro-
gram. Tapia, 131 S. Ct. at 2392-93. But the Court also
emphasized that it was not error for a district court to

4
(...continued)
(internal citations omitted)). But see United States v. Durham,
645 F.3d 883, 898 (7th Cir. 2011) (“[T]he distinction between
diminished capacity and personal characteristics that either
increase or decrease the risk of recidivism (i.e., aggravating
or mitigating factors) is an important one. A finding of dimin-
ished capacity should never be treated as an aggravating
factor for sentencing purposes.”) (citing Portman, 599 F.3d
at 638).
No. 11-1512 21

discuss the opportunities for rehabilitation within
prison or the benefits of specific treatment or training
programs. Id. at 2392. District courts are also permitted
to urge the Bureau of Prisons to place an offender in a
prison-treatment program. Id.
The district court briefly mentioned rehabilitative
programs while sentencing Lucas. After imposing a
sentence of 210 months, the district court stated that
“[s]uch a sentence will serve to hold the defendant ac-
countable, serve as a deterrent, protect the community,
provide the opportunity for rehabilitative programs
and achieve parity with sentences of similarly-situated
offenders.” (Sent. Tr. at 32.) The district court concluded
by stating: “[H]opefully, too, you can find interest in
education and training—all of which I know you plan to
pursue while in prison—that will direct you to some-
thing better upon your release.” Id. at 35. Lucas now
contends that in making these brief statements, the
district court relied on the opportunity for rehabilitation
in lengthening Lucas’s sentence.
Contrary to Lucas’s contention, the district court did
what Tapia plainly allows: discuss the opportunities for
rehabilitative programs while Lucas is imprisoned. As the
Supreme Court stated, “[A] court properly may address a
person who is about to begin a prison term about these
important matters.” Tapia, 131 S. Ct. at 2392. There is no
indication that the district court chose the length of
the sentence based upon the greater opportunities for
rehabilitation a longer prison sentence allowed. Although
“imprisonment is not an appropriate means of promoting
22 No. 11-1512

correction and rehabilitation,” 18 U.S.C. § 3582(a), the
mere mention that Lucas would have the opportunity
to take part in rehabilitative programs is not prohibited
under Tapia.

E. Illegality of the Sentence
Lucas next argues that any sentence above seven
years was illegal as a matter of law. Under 18 U.S.C.
§ 924(c)(1)(A)(ii), a defendant will be “sentenced to a term
of imprisonment of not less than 7 years” for brandishing
a firearm during and in relation to any crime of violence.
Lucas argues that because the statute does not specify
a maximum sentence, such as life imprisonment, that
the specific sentence of seven years is required and any
sentence other than seven years is illegal. We need not
spend much time dispensing with this argument.
We have previously stated that “convictions under
§ 924(c)(1)(A) carry a statutory maximum sentence of
life imprisonment, regardless of what subsection the
defendant is sentenced under.” United States v. Sandoval,
241 F.3d 549, 551 (7th Cir. 2001). The Supreme Court
came to a similar conclusion while addressing § 924(c)’s
mandatory minimum sentences, stating that “[s]ince
[§ 924(c)(1)(A)’s] subsections alter only the minimum,
the judge may impose a sentence well in excess of seven
years, whether or not the defendant brandished the fire-
arm.” Harris v. United States, 536 U.S. 545, 554 (2002)
(emphasis added). And the dissent agreed with this
particular conclusion by stating, in support of its position
that a finding that the defendant brandished a firearm
No. 11-1512 23

must be made by a jury, that such a finding changes
the “penalty range for a conviction” under § 924(c)(1)(A)
from “five years to life in prison” to “seven years to life
imprisonment.” Id. at 575-76 (Thomas, J., dissenting).
Our sister circuits agree, holding that because Congress
set out a statutory minimum but not a maximum in
§ 924(c)(1)(A), it implicitly authorized district courts to
impose a sentence up to a maximum of life imprison-
ment. See United States v. Shabazz, 564 F.3d 280, 289
(3d Cir. 2009); United States v. Johnson, 507 F.3d 793, 798
(2d Cir. 2007); United States v. Dare, 425 F.3d 634, 642 (9th
Cir. 2005); United States v. Avery, 295 F.3d 1158, 1170 (10th
Cir. 2002); United States v. Cristobal, 293 F.3d 134, 147 (4th
Cir. 2002); United States v. Pounds, 230 F.3d 1317, 1319 (11th
Cir. 2000) (per curiam); United States v. Sias, 227 F.3d 244,
246 (5th Cir. 2000). Lucas’s sentence of 210 months was
not illegal because it was below the maximum sentence
of life imprisonment.

F. Substantively Unreasonable
Lucas finally challenges his sentence of 210 months as
substantively unreasonable. We review the district court’s
above-range sentence under an abuse of discretion stan-
dard, in light of the sentencing factors of 18 U.S.C.
§ 3553(a). See Gall, 552 U.S. at 51; United States v. Courtland,
642 F.3d 545, 550 (7th Cir. 2011). A sentence outside the
advisory guidelines range is not presumptively unreason-
able; instead, we defer to the sentencing court when “the
factors in 18 U.S.C. § 3553(a), when taken as a whole,
24 No. 11-1512

justify the extent of the variance from the guidelines.”
United States v. Wise, 556 F.3d 629, 632-33 (7th Cir. 2009).
Under this analysis, “the farther the judge’s sentence
departs from the guidelines[,] the more compelling the
justification based on factors in section 3553(a) that the
judge must offer in order to enable the court of appeals
to assess the reasonableness of the sentence imposed.”
Courtland, 642 F.3d at 550 (internal quotation marks and
punctuation omitted). A court’s explanation may be
sufficient even if not framed in terms of a departure
from the guidelines. Id.
Lucas argues that the sentence is substantively unrea-
sonable for two reasons. First, he contends that the 210-
month sentence for a § 924(c) violation represents such
a substantial increase over the applicable guidelines
sentence of 84 months that it is unprecedented. As evi-
dence, he points to the Supreme Court’s opinion in
United States v. O’Brien, where Justice Kennedy noted
that “most courts impose the mandatory minimum of
7 years’ imprisonment for brandishing a nonspecific
weapon and the longest sentence that has come to the
litigants’ or the Court’s attention is 14 years.” 130 S. Ct.
2169, 2177 (2010). Because the Supreme Court could not
identify a case where a defendant received more than a
fourteen-year sentence for the same offense, and he
received a seventeen-and-one-half-year sentence, Lucas
posits that the sentence is substantively unreasonable.
Lucas’s contention is unavailing. As discussed above,
the maximum sentence for a conviction of § 924(c) is
life imprisonment. Lucas’s sentence was (obviously)
No. 11-1512 25

below this statutory maximum. The fact that we are
unable to identify another case where a criminal de-
fendant received a longer term of imprisonment does
not render the sentence unreasonable; there must
always be a first.
Moreover, Lucas undercuts his own argument by
noting the unusual procedural circumstances of his
sentence. In most cases, a § 924(c) conviction is accompa-
nied by a conviction for an underlying offense, and the
seven-year mandatory minimum under § 924(c)(1)(A)(ii)
would operate as a consecutive sentence. A defendant
in such a case would necessarily already be facing a
sentence greater than seven years without an upward
variance from the mandatory minimum sentence for
the § 924(c) conviction. And if the sentencing judge de-
cided it was appropriate to increase the defendant’s
sentence above the aggregate guidelines range for the
two offenses, he could do so based on the defendant’s
conviction for the underlying offense, rather than the
§ 924(c) conviction. Given this set of circumstances, it
is entirely expected that a longer sentence for a convic-
tion of § 924(c) is unusual. But because the underlying
conduct of attempted kidnapping was dismissed pursu-
ant to the plea agreement, Lucas was in a different situ-
ation from most defendants sentenced under § 924(c).
Second, Lucas argues that, given the magnitude of the
variance from the guidelines sentence, the district court
failed to offer compelling justification under 18 U.S.C.
§ 3553(a) for the sentence imposed. We find no merit to
this argument because the district court justified its
26 No. 11-1512

sentence using the § 3553(a) factors. The district court
discussed at length the violent nature of Lucas’s offense,
which involved a premeditated, meticulous plan to
kidnap and harm a minor, as well as Lucas’s personal
characteristics. The court then noted that at the time of
the offense, Lucas was on conditional release in Massa-
chusetts for illegal possession of firearms. The district
court also found that the guidelines did not adequately
take into consideration the “seriousness of the offense”
under § 3553(a)(2) because the relevant conduct in the
dismissed count of attempted kidnapping was not other-
wise considered under the guidelines sentence. We find
the district court offered compelling justification for
the sentence it imposed, and the sentence was substan-
tively reasonable.

III. C ONCLUSION
For the foregoing reasons, we A FFIRM Lucas’s sentence.

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