In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-3246

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

R OMAN O TTO C ONAWAY,
                                          Defendant-Appellant.


           Appeal from the United States District Court
                for the Southern District of Illinois.
         No. 10 CR 30173—David R. Herndon, Chief Judge.



     A RGUED JANUARY 12, 2012—D ECIDED A PRIL 16, 2013




   Before E ASTERBROOK, Chief Judge, and R OVNER and
T INDER, Circuit Judges.
  R OVNER, Circuit Judge. In September 2010, Roman Otto
Conaway made a series of threatening phone calls to
an imam and numerous federal and state officials.
These calls culminated in a standoff at Conaway’s home
that evening that drew a response from over a dozen
governmental agencies and resulted in the evacuation of
the entire street. Thankfully Conaway’s threats to, among
2                                              No. 11-3246

other things, blow up the entire block turned out to be
bogus—an ominous-looking device strapped to his chest
held squares of putty, not explosive C-4. He was sen-
tenced to two concurrent sentences of 60 months’ impris-
onment after pleading guilty to making false threats to
detonate an explosive device, see 18 U.S.C. § 1038(a)(1),
and influencing a federal official by threat, see 18 U.S.C.
§ 115(a)(1)(B). He argues on appeal that his 60-month
sentences are both procedurally and substantively unrea-
sonable in light of his crime and what he views as miti-
gating factors that the district court failed to adequately
consider. For the reasons that follow, we affirm.


                            I.
  Conaway’s elaborate plot came on the heels of a
widely publicized threat by Terry Jones, a Gainesville,
Florida pastor, to burn 200 copies of the Quran on the
2010 anniversary of the September 11 terrorist attacks.
Jones abandoned his plan (temporarily at least) in the
face of international protests and intense pressure from
governmental and religious leaders—including a per-
sonal phone call from Defense Secretary Robert Gates.
Conaway set his own plan in motion just ten days
later on September 21, 2010 with a page from Jones’s
playbook: he posted on Facebook his plans to burn the
“holy quaran” (sic) and invited anyone with a camera
or video camera to witness the event at his home
address, also posted on Facebook.
  Conaway then began making phone calls, repeating his
threats to burn the Quran and also threatening other
No. 11-3246                                               3

acts of violence. He first called the imam of a St. Louis-
area mosque and told him the following: (1) that he
planned to videotape himself burning the Quran that
night and distribute it to three television channels;
(2) that he wanted to start a war between Christians
and Muslims; (3) that he planned to kill President Obama
and other government officials to start the war; (4) that
he intended to start “an apocalypse” and “end the war
in Afghanistan which fucking Bush started”; (5) that
Terry Jones had caved on his plan to burn the Quran on
account of threats from President Obama; and finally,
(5) that he wanted “Kim Jong-il to have some pain and
cry.” The imam promptly called the FBI to report
Conaway’s threats. Conaway then repeated these
threats or variations of them in a series of phone calls.
Specifically, he called the offices of the Illinois Attorney
General, Congressman John Shimkus, the U.S. Depart-
ment of State, and the White House. When calling the
White House, he requested that President Obama call
him, just as Secretary Gates had called Pastor Jones.
  Not surprisingly, federal agents responded swiftly to
Conaway’s bevy of threats. At approximately 7 p.m. that
evening, two FBI counterterrorism agents, a member of
the Secret Service, and a local patrolman parked down
the street and approached Conaway’s home. Shortly
thereafter, Conaway appeared in the doorway putting
on a belt of some kind, wearing what appeared to be a
suicide vest, and holding something that looked like
a detonator. The belt had wires extending from it that
attached to a curling iron. He stormed angrily into the
front yard and began shouting that he had a bomb
4                                                  No. 11-3246

capable of blowing up the entire block. Federal counter-
terrorism agent John Kelly, who testified at Conaway’s
sentencing hearing, retreated with the other agents to
assess the situation and call for backup.
  Agent Kelly then returned and began negotiating
with Conaway, a process that spanned seven hours. In
the course of the standoff, Conaway persuaded his
wife and adult son to stand on either side of him to act
as a “shield.” During the course of those negotia-
tions, Conaway told agents that the wires attached to
his detonation device were connected to 55-gallon
drums (two in the front yard and one behind the
house) containing combustible chemicals. He demanded
that both the media—Channel 5 news, in particular—and
the imam from St. Louis be brought to his house.
When these demands were not met, he would begin a
“countdown” from ten as if he intended to detonate
his explosive device upon reaching zero. In addition to
the occasional dramatic countdowns, Conaway re-
peatedly threatened to blow up himself, agents and
officers at the scene, and anyone else in the vicinity.
  Predictably, the governmental response to Conaway’s
threats and the ensuing standoff was immense. All told,
at least fifteen state and federal agencies 1 were present



1
  The responding agencies were as follows: Red Cross, St. Clair
Special Emergency Services, Metro Air Support, Caseyville
police, O’Fallon police, French Village fire, Fairview Heights
police, Fairview Heights fire, Illinois Emergency Management
                                                  (continued...)
No. 11-3246                                                 5

at the scene and well over 100 individual state and
federal law enforcement agents. The entire street was
evacuated to a church several blocks away. It was also
necessary to set up a command center and establish
a perimeter around the area to redirect both foot
and vehicle traffic. A SWAT team was also deployed
to the woods behind Conaway’s home to enforce the
perimeter there and prevent anyone from approaching
the home from behind.
  Ultimately Conaway surrendered, at which point it
became apparent that the entire thing had been an elabo-
rate hoax. At some point in the negotiation process,
Conaway agreed to allow his wife and son to leave.
When Conaway realized that neither the media nor
the imam would be coming, he eventually surrendered
in exchange for the promise of a psychiatric evalua-
tion and two cigarettes. The mesh belt Conaway wore
contained blocks of inert putty molded to resemble
bricks of C-4 explosive. In the backyard Conaway had
placed a new Quran atop his barbecue grill next to a
gasoline can and matches. There were also wires
running from the grill to a 55-gallon drum nearby.
  After he surrendered, Conaway was interviewed by
Special Agent Richard Box, who testified about that



1
   (...continued)
Agency, Illinois Secretary of State Bomb Squad, Illinois State
Police, Metropolitan Enforcement Group of Southwestern
Illinois, Illinois Law Enforcement Alarm System Tactical
Response Team (“ILEAS”), St. Clair County Sheriff, and
ILEAS Weapons of Mass Destruction Team.
6                                               No. 11-3246

interview at sentencing. During the interview, Conaway
explained that earlier that day his daughter and grand-
children had received an order of protection against
him in Illinois state court. He told Agent Box that he
believed by strapping a bomb to himself he may get an
audience with Illinois Attorney General Lisa Madigan,
which would allow him to air his complaints about the
allegedly dysfunctional St. Clair County judicial system.
The transcript from the St. Clair County proceedings
reflects that when Conaway was asked to respond to
his daughter’s request for an order of protection, he
stated, “Well, as far as the order of protection, Your
Honor, I don’t care if she takes it for life.” Con-
away also told Agent Box that the Florida pastor, Terry
Jones, had stolen his idea to burn the Quran and gotten
the media attention Conaway should have received. Con-
away also explained that he wanted to burn the Quran
to “piss off Muslims” so that they would strike Illinois
first in the would-be apocalyptic war between Christians
and Muslims. Finally, Conaway admitted that he was
“anti-government” and that he had threatened to “kill
cops” because he did not care (at that point) if he
died. Notwithstanding this, he also allowed that he
“made [his] wife and son stick around because [he]
needed them to shield [him].” Agent Box also testified
that Conaway was deeply apologetic for his behavior
and that he expressed relief that the incident was over.
  Conaway ultimately pleaded guilty to one count of
making false threats with an explosive device, see 18
U.S.C. § 1038(a)(1), and one count of influencing a
federal official by threat, see 18 U.S.C. § 115(a)(1)(B). The
district court concluded over Conaway’s objection that
No. 11-3246                                                  7

several upward adjustments were applicable to his base-
offense level: two levels because the offense involved
more than two threats, U.S.S.G. § 2A6.1(b)(2); six levels
because the offense was motivated by the official status
of the victim, 

and four levels for the
substantial disruption of governmental services, 

After applying a three-point reduction for
acceptance of responsibility and calculating Conaway’s
criminal history category of I, the district court arrived
at a guideline range of 46 to 57 months. Conaway re-
quested a below-guidelines sentence of 30 months, based
primarily on his mental health problems and their
role in his offense. The government, for its part, recom-
mended a sentence of 50 months—in the middle of the
advisory guideline range.
  After considering the sentencing factors in 18 U.S.C.
§ 3553(a) 2 and hearing argument from the government,
defense counsel, and Conaway himself, the district


2
  The factors for the court’s consideration under § 3553(a)
include the following:
    (1) the nature and circumstances of the offense and the
    history and characteristics of the defendant; (2) the need
    for the sentence imposed—(A) to reflect the seriousness
    of the offense, to promote respect for the law, and to
    provide just punishment for the offense; (B) to afford
    adequate deterrence to criminal conduct; (C) to protect
    the public from further crimes of the defendant; and (D) to
    provide the defendant with needed education and voca-
    tional training, medical care, or other correctional treat-
    ment in the most effective manner[.]
18 U.S.C. § 3553(a)
8                                             No. 11-3246

court imposed a term of 60 months’ imprisonment. The
court noted that in terms of seriousness, Conaway’s crime
was at the “upper scale of criminal events,” along the
lines of a domestic terrorism incident. The court also
concluded that Conaway’s actions throughout the
standoff and during the interviews afterward demon-
strated his awareness of both the criminality and the
wrongfulness of his actions. Finally, the court noted that
Conaway had a history of threatening behavior that had,
if anything, escalated as he had aged. Conaway appeals.


                           II.
  Conaway argues that his sentence is both pro-
cedurally and substantively unreasonable. Our review
of the reasonableness of a sentence is twofold. First, we
assess whether the sentence is procedurally reasonable.
Specifically, we ask whether the court properly cal-
culated the guidelines range, appropriately analyzed
the § 3553(a) factors, accurately assessed the underlying
facts, and sufficiently explained the sentence and any
justification for deviating from the recommended ad-
visory guideline range. See, e.g., United States v. Brown,

, 397 (7th Cir. 2010). We next consider
whether the sentence is substantively reasonable. This
review is deferential. Within-guidelines sentences are
afforded a presumption of reasonableness. Although
there is no such presumption for sentences outside the
range, they are nonetheless reviewed deferentially. See
United States v. Parr, 

, 505 (7th Cir. 2008)
No. 11-3246                                             9

(stating that “review of a nonguideline sentence is ex-
tremely deferential”).
  Conaway first maintains that the district court errone-
ously applied U.S.S.G. § 3A1.2. Subsections (a) and (b)
of that section instruct the court to increase the offense
level by six total levels if the offense was motivated by
the fact that the victim was a government officer or em-
ployee and the underlying offense was an offense
against the person from Chapter Two of the guidelines.
As relevant here, the application note to § 3A1.2
explains that the adjustment applies when “the offense
of conviction was motivated by the fact that the victim
was a government officer or employee.” 

review the district court’s factual findings sup-
porting an adjustment only for clear error. United States
v. Pellman, 

, 926 (7th Cir. 2012). We review
de novo its judgment that the facts support the adjust-
ment. 

argued that § 3A1.2 was inap-
plicable because his threats were simply “a general
harangue against anybody and everybody,” as opposed
to anything designed to target law enforcement. The
district court disagreed, finding specifically that Con-
away’s entire elaborate plan hinged on the appearance
of law enforcement at his residence to enable him to
“put on the show.” The court also concluded that
Conaway’s claim that he was indifferent to who was
on the receiving end of his threats ran “counter to the
evidence,” which showed that it was clearly part and
parcel of his plan to draw in law enforcement with
his bomb hoax.
10                                            No. 11-3246

  We see no error in the factual findings of the district
court. The record amply demonstrates that from the
time Conaway set his plan in motion—with Facebook
posts and phone calls to top-level state and federal
officials—he anticipated a response from law enforce-
ment. When that response came, he escalated his
behavior with continuing threats and occasional count-
downs to a supposed bomb detonation. This dem-
onstrates that Conaway was “motivated” by the fact
that his victims were government officers and not
simply bystanders on his block, whom he could have
threatened without an elaborate plan to draw countless
state and federal agencies to his home using incendiary
threats to kill President Obama and incite violence
against Muslims.
  Conaway, however, argues that the order of protec-
tion entered against him earlier that day in state court
was actually what “motivated” his crime. He shores up
his argument with Agent Box’s testimony at sentencing,
wherein he agreed with Conaway’s counsel that it was
fair to say that the order of protection was a “triggering
event” for the incident. It may well be that Conaway
was disgruntled with the Illinois state court system
and upset over the order of protection, but this fails to
undermine the evidence that he clearly sought out gov-
ernment officers or employees as the victims, so to
speak, of his threats. That he may have been motivated
to act by his frustration with the order of protection
in no way changes the facts found by the district court:
that he acted with the intention of bringing law enforce-
ment officials to his home so that he could make his
No. 11-3246                                             11

threats to blow up both them and the surrounding block.
Moreover, the record demonstrates that several days
before the state court hearing, Conaway opened a new
Facebook account to use for posting his threats to burn
the Quran. There is thus ample evidence from which
to conclude that garnering media attention and luring
in law enforcement to respond to his threats motivated
his crime at least as much as any anger over the
order of protection. And while he may have believed all
of this was the way to draw attention to his frustration
with the Illinois court system (a problem he made
little mention of during the seven-hour standoff), the
district court did not clearly err by concluding that
Conaway targeted law enforcement officials as a means
to whatever end he had in mind. See United States v.
Suarez, 

, 779 (7th Cir. 2000) (reiterating that
district court’s choice between two competing factual
scenarios cannot be clearly erroneous). Thus, the six-
level official victim adjustment under § 3A1.2 was ap-
propriate. Cf. United States v. Williams, 

,
424 (5th Cir. 2008) (concluding that official victim ad-
justment applied to prison inmate who claimed that
assault of prison guard was motivated by guard’s
having touched him inappropriately as opposed to his
official status).
  Conaway next contends that his sentence three months
above the advisory guideline range is substantively
unreasonable. We have noted that “ ‘[t]he 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
12                                              No. 11-3246

enable the court of appeals to assess the reasonableness
of the sentence imposed.’ ” United States v. Courtland,

, 550 (7th Cir. 2011) (quoting United States
v. Dean, 

, 729 (7th Cir. 2005)). More recently
we have clarified that the question of how much “far-
ther” a sentence is from a recommended range is to be
considered in relative, rather than absolute, terms. See
United States v. Castillo, 

, 673 (7th Cir. 2012).
Here, the district court’s sentence of three months
above the upper advisory range is fairly minor in both
relative and absolute terms.
   Conaway, however, argues that given his well-estab-
lished history of mental illness, a sentence below the
advisory guideline range was appropriate and that cer-
tainly anything above that range is unreasonable. Specifi-
cally, Conaway maintains that a Bureau of Prisons
(“BOP”) competency evaluation and an evaluation pre-
pared at his request by Dr. Daniel J. Cuneo both contain
findings suggesting he suffered from diminished mental
capacity such that a reduced sentence would be appro-
priate. The BOP evaluation concluded that he suffered
from an “adjustment disorder with mixed anxiety and
depressed mood,” “rule-out sedative/anxiolytic abuse,”
and “rule-out paranoid personality disorder (with anti-
social traits).” Dr. Cuneo diagnosed Conaway with
bipolar disorder, paranoid personality disorder, and
“sedative/anxiolytic abuse by history” and “caffeine
intoxication by history.” Conaway also makes much
of Dr. Cuneo’s opinion that Conaway’s mental illness
“was one of the major factors contributing to his
actions at the time of the alleged offense.”
No. 11-3246                                             13

  In the district court, Conaway argued that a lower
sentence was appropriate under U.S.S.G. § 5K2.13.
That section recognizes that a reduced sentence (“de-
parture” in mandatory guidelines era language) may be
warranted if “(1) the defendant committed the of-
fense while suffering from a significantly reduced
mental capacity; and (2) the significantly reduced mental
capacity contributed substantially to the commission
of the offense.” U.S.S.G. § 5K2.13. As relevant here, sec-
tion 5K2.13 further provides that such a reduction is
inappropriate if the reduced mental capacity was
caused by voluntary use of drugs or other intoxicants or
if either the offense itself or the defendant’s criminal
history indicates that there is a need to protect the
public. 

generally that the court
should consider his diminished mental capacity as a
mitigating factor in his history and characteristics
under § 3553(a)(1). See United States v. Durham, 

, 898 (7th Cir. 2011) (pointing out “important” distinc-
tion between diminished capacity under § 5K2.13 and
personal characteristics that may be either aggravating
or mitigating factors).
  The government on appeal focuses largely on
Conaway’s ineligibility for a reduced sentence under
§ 5K2.13, despite the fact that he has largely dropped
his arguments under § 5K2.13. Given the factual
findings below and the nature of Conaway’s offense, it
is unsurprising that he abandons this angle on appeal.
Factually, the district court found that Conaway “was
clearly aware that his actions were criminal in nature
and wrongful in every respect, and he clearly through-
14                                              No. 11-3246

out this entire event demonstrated control.” This
finding is supported by the record. First, Conaway’s
own expert, Dr. Cuneo, concluded his report with the
observation that Conaway did “know that threatening
federal officials is against the law [and that] . . . threat-
ening to detonate a bomb and threatening the president
is wrong. He could have controlled his behavior if he
so desired.” Secondly, Agent Kelly testified that he per-
ceived Conaway’s mental state during the standoff to
be “very clear.” Agent Box, who interviewed Conaway
following his surrender, recounted that Conaway re-
peatedly expressed remorse, told Agent Box that he
knew the difference between right and wrong, and
seemed “very coherent.” Taken together, this evidence
supports the district court’s rejection of Conaway’s as-
sertion that diminished mental capacity contributed
significantly to his commission of the offense. Likewise,
the nature of the offense itself and Conaway’s history
lend credence to the district court’s conclusion that it
was important to protect the public from Conaway.
See U.S.S.G. § 5K2.13 (stating that court may not de-
part below guideline range if facts of offense suggested
need to protect public from defendant because offense
involved actual violence or the threat of violence).
  That leaves Conaway’s claim that the district court
failed to properly consider his mental illness when eval-
uating his history and characteristics under § 3553(a).
Specifically, Conaway claims that the district court
failed to adequately account for the overwhelming evi-
dence that his mental illness contributed to the offense
and simultaneously overemphasized what the court
No. 11-3246                                               15

described as Conaway’s “threatening” behavior in the
past. He argues that the district court’s weighing of the
various § 3553(a) factors—specifically the overemphasis
and exaggeration of his past behavior and underem-
phasis of his mental illness—strayed impermissibly
outside “ ‘the bounds of reason.’ ” See United States v.
Busara, 

, 674 (7th Cir. 2008) (noting that
district court may weigh sentencing factors ac-
cordingly within “ ‘the bounds of reason, which are
wide’ ”) (quoting United States v. Johnson, 

,
766 (7th Cir. 2006)).
  Our review focuses on whether the district court ade-
quately explained its rationale for the chosen sentence
and whether that sentence is fairly grounded in the
§ 3553(a) factors. See Gall v. United States, 

, 50
(2007); 

. When sentencing outside
the advisory guideline range, the judge must provide
an explanation that articulates and justifies the magni-
tude of the variance. See 

; United
States v. Miller, 

, 739 (7th Cir. 2010).
   Although Conaway disagrees with the conclusions the
district court reached, it is clear from the record that
the court adequately considered his mental illness and
explained why it nonetheless imposed a sentence
slightly above the advisory range. The court specifically
noted each of the § 3553(a) factors and also noted that
it had read Conaway’s sentencing memormandum and
its addendum “actually a couple of times.” The judge
also stated that he considered Conaway’s diminished
mental capacity argument “very carefully.” Despite its
16                                            No. 11-3246

finding that Conaway may have “diminished capacity in
some respects,” what struck the court when it came to
his character and history was Conaway’s penchant for
“threatening behavior, aggressive behavior, [and] anti-
government behavior.” This behavior included, among
other things, calling a woman repeatedly and threat-
ening to blow her head off and fire bomb her home,
threatening to sue everyone involved in recouping
funds on bad checks he wrote, threatening to “take
some people out and get off by pleading insanity” when
he was investigated for allegedly abusing his grand-
children, and getting barred from a casino after
kicking a machine.
  Conaway insists that the court overstated these past
incidents, which he characterizes as boiling down to
“angry threats of bodily harm over the phone 30 years ago,
threatening to ‘sue everyone’ after being prosecuted
for bad checks 14 years ago, and death threats over
ten years ago after his children were taken away.” But
the court was within its discretion to view the current
crime as a continuation of the sort of angry, threatening
behavior Conaway had displayed repeatedly in the
past. The court carefully considered Conaway’s various
arguments and painstakingly explained why it believed
the “extreme” nature of his bomb hoax warranted a
sentence above the advisory guideline range. The court
also discussed mitigating factors such as Conaway’s
work history, his efforts to assist with other cases after
his arrest, and his timely plea.
  The facts of this case are distinguishable from those
in United States v. Miranda, 

(7th Cir. 2007),
No. 11-3246                                           17

upon which Conaway relies heavily. The defendant
there suffered from persistent delusions and hallucina-
tions and was in fact experiencing auditory command
hallucinations telling him that “we need money” at the
time he robbed a bank. 

the evalua-
tions by both the BOP doctor and Dr. Cuneo reflect di-
agnoses of mental disorders, neither doctor opined
that Conaway was unaware of reality or unable to
control or understand his behavior. The sentencing tran-
script here demonstrates that the district court con-
sidered these reports and took into account Conaway’s
psychological difficulties. The court simply concluded
that it was appropriate to assign more weight to the
extraordinary nature of the crime and the need to pro-
tect the public from what it viewed as Conaway’s esca-
lating pattern of menacing behavior. See 

(“[I]t is perfectly acceptable for courts
to assign varying weights to the [§ 3553(a)] factors as
they deem appropriate in the context of each case.”).
This was not an abuse of the district court’s discretion.


                           III.
  For the foregoing reasons, we A FFIRM Conaway’s con-
victions and sentences in all respects.




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