Upward Variances for Threats Against Federal Judges May Rest on Seriousness and Deterrence Even When Guideline Enhancements Apply

Case: United States v. Stephen Thorn (11th Cir. Apr. 27, 2026) (per curiam) (not for publication)

1. Introduction

This Eleventh Circuit decision reviews the substantive reasonableness of a statutory-maximum sentence imposed for threats directed at a sitting federal district judge and her family. Stephen Jay Thorn pleaded guilty to making an interstate threat to injure, 18 U.S.C. § 875(c), after leaving five voicemails (dialing *67 to mask his identity) that escalated from criticism to detailed, targeted statements referencing the judge’s spouse, children, address, and the ease of “track[ing]” her down. The government dismissed a second count under 47 U.S.C. § 223(a)(1)(C).

The key appellate issues were whether the district court (1) impermissibly relied on considerations already captured by the Sentencing Guidelines when imposing a 30-month upward variance (from a 24–30 month range to 60 months), and (2) failed to give adequate weight to mitigating personal characteristics (age, health, trauma history). Thorn also attempted—only in his reply brief—to argue unwarranted sentencing disparities compared to other judge-threat cases.

2. Summary of the Opinion

The Eleventh Circuit affirmed. Applying deferential abuse-of-discretion review, it held the 60-month sentence substantively reasonable in light of the totality of the circumstances. The court concluded:

  • The district court permissibly emphasized the seriousness, cruelty, and “terroristic” nature of the threats, as well as the need for general and specific deterrence.
  • Even if the Guidelines enhancements addressed similar subject matter (multiple threats; official victim), the district court could still rely on the same underlying facts when evaluating the 18 U.S.C. § 3553(a) factors and deciding to vary upward.
  • The court adequately considered mitigating characteristics by adopting the presentence investigation report (PSR) and stating it had considered all § 3553(a) factors; it was not required to discuss each characteristic explicitly.
  • The sentencing-disparity argument was forfeited because it was raised for the first time in the reply brief.

3. Analysis

A. Precedents Cited

Framework for review (substantive reasonableness; deference):

  • Gall v. United States, 552 U.S. 38, 51 (2007): Establishes abuse-of-discretion review for substantive reasonableness and requires consideration of the “totality of the circumstances.” The panel relied on Gall to underscore that appellate courts do not reweigh § 3553(a) factors de novo.
  • United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010): Places the burden on the appellant to show unreasonableness. Thorn’s inability to demonstrate that the district court’s weighting choices were outside permissible bounds was decisive.

What counts as an abuse of discretion in sentencing:

  • United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc): Supplies the familiar three-part articulation of abuse of discretion (failure to consider relevant factors; improper factors; clear error of judgment). The panel used Irey as the organizing standard for Thorn’s variance challenge.
  • United States v. Campa, 459 F.3d 1121, 1174 (11th Cir. 2006) (en banc) (Birch, J., dissenting): Quoted via Irey for the same abuse-of-discretion formulation. Its presence functions as part of the Eleventh Circuit’s canonical phrasing rather than as an independent analytical pivot.

Variance discretion; justification; weighting of § 3553(a):

  • United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009): Cited for the proposition that a district court should explain why a variance is appropriate. Here, the district court’s explanation—premeditation, escalation, family targeting, broader deterrence concerns—was deemed sufficient.
  • United States v. Grushko, 50 F.4th 1, 20 (11th Cir. 2022) (citing Irey): Recognizes that a “major” variance may require a more significant justification. The panel treated the district court’s rationale (terroristic quality, deliberation, rising prevalence of such threats) as meeting that heightened explanatory expectation.
  • United States v. Shabazz, 887 F.3d 1204, 1259 (11th Cir. 2018): Confirms that district courts may assign “heavier weight” to some § 3553(a) factors than others. This directly answered Thorn’s complaint that mitigation (age/health/trauma) should have dominated.

Using facts already reflected in Guidelines to justify a variance:

  • United States v. Oudomsine, 57 F.4th 1262, 1268 (11th Cir. 2023): The critical citation for rejecting the “already accounted for” argument. The panel relied on Oudomsine to hold that the existence of guideline enhancements does not preclude a district court from considering the same conduct under § 3553(a) to vary upward.

Need not address each mitigating factor explicitly:

  • United States v. Snipes, 611 F.3d 855, 873 (11th Cir. 2010): Supports the principle that while a court must consider relevant § 3553(a) factors, it need not discuss each one on the record. The panel used Snipes to uphold the district court’s reliance on the PSR and a general statement that it considered all factors.

Issue preservation; reply-brief waiver:

  • United States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006) (quoting Herring v. Sec'y, Dep't of Corrs., 397 F.3d 1338, 1342 (11th Cir. 2005)): Enforces the rule that arguments raised for the first time in a reply brief are not properly before the court. This disposed of Thorn’s late-raised disparity claim without reaching its merits.

B. Legal Reasoning

1) The “double counting”/overlap argument failed as a matter of variance doctrine

Thorn’s guideline range (24–30 months) resulted from, among other things, (i) a two-level increase under U.S.S.G. § 2A6.1(b)(2) for “more than two threats,” and (ii) a six-level increase under U.S.S.G. § 3A1.2(b) for threatening a government employee motivated by the disposition of a case. Thorn argued that an upward variance improperly re-used these facts.

The panel rejected that framing by invoking United States v. Oudomsine: even when Guidelines enhancements capture aspects of the offense, the district court may still evaluate the same conduct under § 3553(a) when deciding whether the range is adequate. In other words, overlap is not disqualification; the question is whether the ultimate sentence is reasonable in light of the statutory factors.

2) The district court’s rationale was treated as a “major variance” justification

The variance was substantial (to the 60-month statutory maximum). Under United States v. Grushko and United States v. Irey, the larger the variance, the more compelling the explanation generally must be. The panel found the explanation sufficient because the district court highlighted:

  • Deliberation and escalation: multiple calls, masked identity, time between messages, increasing specificity.
  • Family targeting and specificity: naming spouse and children, providing address, emphasizing ease of tracking down.
  • Characterization of harm: conduct described as “cruel” and “terroristic,” supporting heightened seriousness.
  • Deterrence: general deterrence in light of asserted increasing prevalence of threats against federal judges; specific deterrence based on perceived continuing dangerousness.

These considerations map directly onto § 3553(a)(2)(A) (seriousness/promote respect), § 3553(a)(2)(B) (general deterrence), and § 3553(a)(2)(C) (protect the public/specific deterrence). Under United States v. Shabazz, the district court could lawfully prioritize these over mitigation.

3) Mitigation was “considered” even without explicit discussion

Thorn argued the court insufficiently weighed his age (66), medical diagnoses, and traumatic history. The panel emphasized that the district court:

  • stated it had considered all § 3553(a) factors;
  • adopted the PSR’s factual findings, which detailed age and health;
  • acknowledged his “very tough life.”

Under United States v. Snipes, explicit, factor-by-factor discussion is not required. The panel thus treated the record as showing adequate consideration—even if the court ultimately assigned those factors less weight.

4) The disparity argument was procedurally barred on appeal

Thorn’s attempt to compare his sentence to other cases was raised only in the reply brief. Under United States v. Evans (quoting Herring v. Sec'y, Dep't of Corrs.), the panel declined to consider it. This reinforces that meaningful § 3553(a)(6) disparity arguments must be presented in the opening brief (and, practically, developed in the district court).

C. Impact

  • Variance practice in threat cases: The decision reinforces that courts may treat targeted threats against judges (especially with family-specific details and premeditation) as warranting statutory-maximum sentences, even when the Guidelines include enhancements for multiplicity and official-victim status.
  • Guideline-overlap objections have limited traction: By leaning on United States v. Oudomsine, the panel signals that “the Guidelines already accounted for it” is rarely sufficient by itself to defeat an upward variance where § 3553(a) factors plausibly support more punishment.
  • Record-building for mitigation: The affirmance illustrates that, absent a clear failure to consider mitigation, appellate courts will not second-guess the district court’s weighting—especially where the PSR contains the relevant facts and the judge references § 3553(a) generally.
  • Appellate preservation: The reply-brief ruling under United States v. Evans underscores that sentencing-disparity and comparator arguments must be timely raised or they will not be reached.

4. Complex Concepts Simplified

  • Substantive reasonableness: Whether the sentence length is reasonable given the full context and the goals in 18 U.S.C. § 3553(a). It is not enough to show the judge could have chosen a different sentence; the appellant must show the chosen sentence was outside the range of reasonable outcomes.
  • Upward variance vs. departure: A variance is a sentence outside the guideline range based on the statutory factors in § 3553(a). A departure is an adjustment based on specific provisions within the Guidelines system. This case involves an upward variance.
  • Guidelines enhancements: Additions to the offense level for specific features (here, multiple threats under § 2A6.1(b)(2) and official-victim motivation under § 3A1.2(b)), which increase the advisory range.
  • General vs. specific deterrence: General deterrence aims to discourage others from committing similar crimes; specific deterrence aims to prevent the same defendant from reoffending.
  • Issue preservation (reply-brief waiver): Appellate courts generally will not consider arguments first introduced in a reply brief because the opposing party lacks a fair chance to respond.

5. Conclusion

United States v. Stephen Thorn affirms a statutory-maximum, upward-variant sentence for detailed threats against a federal judge and her family, emphasizing that district courts may heavily weight seriousness and deterrence under § 3553(a) even where Guideline enhancements cover similar conduct. The opinion also underscores two practical rules: sentencing courts need not explicitly discuss every mitigating characteristic if the record shows consideration, and appellants must timely raise disparity arguments (and other theories) or risk forfeiture on appeal.