United States v. Lemke ( 2023 )

22-156
United States v. Lemke
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 17th day of January, two thousand twenty-three.
PRESENT:
DENNIS JACOBS,
RICHARD J. SULLIVAN,
MYRNA PÉREZ,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 22-156
ROBERT LEMKE, AKA SEALED DEFENDANT 1,
Defendant-Appellant.
_____________________________________
For Appellant: Brendan White, White & White, New
York, NY.
For Appellee: Kimberly J. Ravener, Kyle A. Wirshba,
Dina McLeod, Assistant United States
Attorneys, for Damian Williams, United
States Attorney for the Southern District
of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Alvin K. Hellerstein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Robert Lemke appeals from his conviction and sentence following his guilty
plea, pursuant to an agreement with the government, to one count of transmitting
an interstate communication threatening to injure another person, in violation of
18 U.S.C. § 875(c). The conviction stems from a series of text and audio messages
that Lemke sent to over fifty individuals – including journalists, members of
Congress, and other public figures – threatening to commit acts of armed violence
against those individuals and their family members unless they complied with
Lemke’s demands to publicly dispute the results of the 2020 presidential election,
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which he believed to be illegitimate. The district court sentenced Lemke to an
above-Guidelines term of thirty-six months’ imprisonment, to be followed by
three years’ supervised release, and imposed a $100 mandatory special
assessment. On appeal, Lemke argues that the district court erred in failing to
inquire sua sponte into a putative conflict of interest on the part of his counsel at
sentencing; he also challenges the procedural and substantive reasonableness of
his sentence. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
Where, as here, a defendant “asserts for the first time on appeal that the
district court should have investigated whether one of his attorneys had a conflict
of interest,” we “review this unpreserved objection for plain error.” United States
v. Reichberg, 5 F.4th 233, 245–46 (2d Cir. 2021). On plain-error review, we are
“allow[ed] . . . to ‘correct an error not raised [in the district court] only where the
appellant demonstrates that (1) there is an error; (2) the error is clear or obvious,
rather than subject to reasonable dispute; (3) the error affected the appellant’s
substantial rights, which in the ordinary case means it affected the outcome of the
district court proceedings; and (4) the error seriously affects the fairness,
integrity[,] or public reputation of judicial proceedings.’” United States v. Cohan,
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798 F.3d 84, 88 (2d Cir. 2015) (quoting United States v. Marcus, 560 U.S. 258, 262
(2010)).
While we generally review both the procedural and substantive
reasonableness of a sentence under a “deferential abuse-of-discretion standard,”
United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v.
United States, 552 U.S. 38, 41 (2007)), we apply the plain-error standard to
procedural-reasonableness challenges not raised in the district court, see United
States v. Villafuerte, 502 F.3d 204, 208–09 (2d Cir. 2007). A district court may
commit procedural error by, among other things, “failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen
sentence – including an explanation for any deviation from the Guidelines range.”
Gall, 552 U.S. at 51. “As to substance, we will not substitute our own judgment
for the district court’s” and “will instead set aside a district court’s substantive
determination [of the appropriate sentence] only in exceptional cases where [its]
decision cannot be located within the range of permissible decisions.” Cavera, 550
F.3d at 189 (emphasis and internal quotation marks omitted).
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Lemke first argues that there was an “obvious . . . potential conflict of
interest between [Lemke] and his attorney at the sentencing stage,” that the district
court erred in failing to inquire sua sponte into this putative conflict of interest,
and that as a result, his sentence “must be vacated.” Lemke Br. at 9 (capitalization
standardized). We disagree.
“The right to counsel under the Sixth Amendment entails ‘a correlative right
to representation that is free from conflicts of interest.’” United States v. Levy, 25
F.3d 146, 152 (2d Cir. 1994) (quoting Wood v. Georgia, 450 U.S. 261, 271 (1981)). To
establish a violation of that right, “a defendant” must “show[] that his counsel
actively represented conflicting interests.” Mickens v. Taylor, 535 U.S. 162, 175 (2002)
(emphasis in original; citation omitted). For example, a conflict cognizable under
the Sixth Amendment “may be rooted in the attorney’s prior representation of a
person whose interests are antagonistic to those of his present client” or
“grounded in the fact that two lawyers from the same firm [simultaneously]
represent two codefendants.” United States v. Blount, 291 F.3d 201, 211 (2d Cir.
2002).
When a district court “knows or reasonably should know that a particular
conflict exists,” id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 347 (1980)), it must sua
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sponte “investigate the facts and details of the attorney’s interests to determine
whether the attorney in fact suffers from an actual . . . [or] potential conflict,” id.(citation omitted), and, if so, proceed “to determine whether the defendant
knowingly and intelligently waives his right to conflict-free representation,”
United States v. Velez, 354 F.3d 190, 198 (2d Cir. 2004). That obligation, however,
is triggered only where “the possibility of a conflict of interest [i]s ‘sufficiently
apparent’”– as opposed to where there is merely a “vague, unspecified possibility
of conflict” or where, “as a result of creative speculation, one could imagine [that]
a conflict may have arisen.” Id. (first quoting Wood, 450 U.S. at 272; then quoting
Mickens, 535 U.S. at 168–69) (emphasis added). And on plain-error review, a
defendant must show not only that the potential conflict was “sufficiently
apparent,” id. (citation omitted), but that it was “clear or obvious,” Reichberg, 5
F.4th at 246 (quoting Marcus, 560 U.S. at 262) (other citation omitted).
Here, Lemke fails to establish that his counsel at sentencing, Assistant
Federal Defender Julia Gatto, suffered from any possible conflict of interest that
would be cognizable under the Sixth Amendment. As a result, he has not
identified a conflict that was “sufficiently apparent” to require the district court to
undertake a sua sponte inquiry, Velez, 354 F.3d at 198 (citation omitted), much less
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one that was so “clear or obvious” as to justify a finding of plain error, Reichberg,
5 F.4th at 246 (citation omitted).
As evidence of a putative conflict of interest, Lemke primarily focuses on
the tension between Gatto’s sentencing submission, which “sought to connect Mr.
Lemke’s conduct to psychological issues discussed in a [medical expert] report . . .
stat[ing] that [he] suffered from mental illness[es] including grandiosity,” Lemke
Br. at 12–13 (citing App’x at 47), and Lemke’s subsequent letter to the district court,
“in which [he] ‘took exception to [Gatto’s] ascription[s]’ regarding his
psychological condition,” characterizing them as “falsehoods,” id. at 24 (first
quoting App’x at 192–93; then quoting id. at 137). But the apparent tensions in
this case do not “show[] that [Lemke’s] counsel actively represented . . . interests”
adverse to her client’s, Mickens, 535 U.S. at 175 (2002) (emphasis and citation
omitted); they merely show that Gatto made a strategic decision to cite Lemke’s
mental health as a mitigating factor at sentencing, and that Lemke later came to
disagree with that strategy. As we have repeatedly held, such disagreements
over legal strategy are not cognizable as conflicts of interest under the Sixth
Amendment. See United States v. Jones, 482 F.3d 60, 75 (2d Cir. 2006) (“As the only
basis asserted by [defendant] for his claim that his attorneys had a conflict of
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interest is that he and they disagreed as to tactics, he has not shown an actual
conflict of interest.”); see also, e.g., United States v. Doe No. 1, 272 F.3d 116, 126 (2d
Cir. 2001); United States v. Rahman, 189 F.3d 88, 144 (2d Cir. 1999); United States v.
White, 174 F.3d 290, 296 (2d Cir. 1999). Nor do such disagreements deprive
defendants of their autonomy in violation of the Sixth Amendment. While the
constitutional guarantee of effective assistance requires counsel “to consult with
the defendant on” certain “important decisions,” Strickland v. Washington, 466 U.S.
668, 688 (1984), over which a defendant has “ultimate authority,” Florida v. Nixon,
543 U.S. 175, 187 (2004)– such as “whether to plead guilty, waive the right to a jury
trial, [or] testify [on] one’s own behalf,” McCoy v. Louisiana, 138 S. Ct. 1500, 1508
(2018) – Lemke cites no authority to suggest that the tactical decision as to what
arguments to advance in a sentencing memorandum is among them.
Lemke also attempts to manufacture a conflict of interest out of Gatto’s
response to his letter. Namely, he contends that when Gatto “submitted her own
letter . . . contend[ing] that” Lemke’s objections to his medical expert’s diagnoses
of mental illness “were in fact manifestations of” the very “psychological
imbalance” referred to in the expert report, she placed herself in “an untenable
position” in which she “would . . . be motivated to undermine [Lemke’s]
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credibility . . . in order to protect [her] own reputation.” Lemke Br. at 24 (citing
App’x at 143). In effect, Lemke argues that his “mere making of . . . an accusation”
that Gatto’s sentencing submission had misrepresented his mental illness “ipso
facto resulted in a conflict of interest because [Gatto could] []not defend h[er]self
without contradicting [Lemke].” United States v. Moree, 220 F.3d 65, 71 (2d Cir.
2000). We have roundly rejected that argument in the past, and we do so again
here. See id. at 71–72 (holding that “common complaints [that] defendants make
in efforts to be rid of an appointed attorney” – “unlike a claim” of formal
“attorney[] misconduct,” such as a defendant’s “accus[ing] his attorney . . . of
having coerced his plea” – “do not give rise to a conflict of interest, even though
the attorney may contradict the defendant’s allegation in responding to the
accusation”); see also White, 174 F.3d at 295 (finding no conflict of interest where
defendant “argue[d] that, as a result of” his complaints about his attorney, the
attorney “contradicted him in open court” (alteration omitted)).
In sum, we find nothing in the record to suggest the existence of a conflict
of interest between Lemke and Gatto. It cannot have been error – much less plain
error – for the district court to have declined to inquire sua sponte into potential
conflicts of interest where none existed.
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Lemke next challenges his sentence as both procedurally and substantively
unreasonable. His procedural-reasonableness challenge is wholly premised on
his contention that “the district court’s failure to make an appropriate inquiry
regarding the potential attorney-client conflict” was “an error of law.” Lemke Br.
at 29. Because we have already rejected that underlying contention on its merits,
we likewise must reject Lemke’s procedural-reasonableness challenge. 1 With
respect to the substantive reasonableness of his sentence, Lemke offers several
distinct arguments in support of his challenge, but none is availing.
First, Lemke argues that the thirty-six month term of imprisonment
imposed by the district court “was substantively unreasonable” because it “was
more than 70[%] higher than the top end of the [G]uideline[s] range[] and well
over double the [fifteen]-month sentence recommended by [the] [P]robation
[Office].” Id. This argument assumes that we must treat the Sentencing
Commission’s Guidelines and the Probation Office’s recommendations as tight
1 Lemke concedes, as he must, that a district court’s failure to investigate a defense attorney’s
potential conflict of interest “is not typically among those enumerated as potential procedural
errors.” Lemke Br. at 29; cf. Gall, 552 U.S. at 51. Nevertheless, he urges that here, “the
circumstances call for” us to expand the “typical” scope of procedural-reasonableness review.
Lemke Br. at 29. Since Lemke’s Sixth Amendment conflict-of-interest claim here fails on the
merits, we decline to reach the novel question of whether even a meritorious claim of that kind
would implicate the procedural reasonableness of a sentence.
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constraints on the district court’s sentencing discretion. But our caselaw makes
clear that it would be affirmatively inappropriate for us to proceed under such an
assumption. We “may not apply a presumption of unreasonableness” simply
because “a sentence is outside the Guidelines range,” United States v. Pope, 554 F.3d
240, 246 (2d Cir. 2009) (quoting Gall, 552 U.S. at 51), “[n]or [may] we . . . require
‘extraordinary’ circumstances to justify a deviation from the Guidelines
range,” Cavera, 550 F.3d at 190 (quoting Gall, 552 U.S. at 47). Likewise, we have
repeatedly emphasized that the Probation Office’s presentence report in a given
case “is merely a recommendation that does not bind a district court.” United
States v. Avello-Alvarez, 430 F.3d 543, 545 (2d Cir. 2005); see also United States v.
Rivera, 96 F.3d 41, 43 (2d Cir. 1996) (explaining that “the defendant has no
justifiable expectation that the [Probation Office’s] recommendation will be
followed”); United States v. Welbeck, 145 F.3d 493, 498–99 (2d Cir. 1998) (rejecting
defendant’s claim that the district court erred by failing to follow the Probation
Office’s recommendation); United States v. Eberhard, 525 F.3d 175, 179 (2d Cir. 2008)
(finding sentence substantively reasonable when it was sixty-four months longer
than the Probation Office’s recommendation).
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Second, Lemke argues that the district court lacked valid “reason[s] . . . for
why it was pronouncing an upward variance, . . . why such a substantial variance
was being imposed, or why the [G]uidelines sentence was inadequate to meet the
requirements of 18 U.S.C. § 3553(a).” Lemke Br. at 30. 2 But the record clearly
contradicts this assertion. Indeed, the district court gave extensive “reasons” for
its determination that the “factors provided in 18 U.S.C. [§] 3553(a)” made it
“necessary” to “var[y] and depart[] upwards from the [G]uidelines
recommendations.” App’x at 190–91, 194.
As for “the need for the sentence imposed to reflect the seriousness of the
offense,” the district court detailed how Lemke’s “[t]hreats to intimidate” had
chilled the “[r]obust political debate [that] is a hallmark of our democracy” and
struck at his victims’ rights to engage in “[f]ree debate without fear of harm to
[themselves] and to their families.” Id. at 192–94. As for “the need for the
sentence imposed to . . . afford adequate deterrence to [similar] criminal conduct,”
2 More specifically, Lemke asserts that “the district court did not expressly state” such “reason[s]
on the record.” Lemke Br. at 30. Generally, such an assertion would sound in procedural,
rather than substantive, reasonableness. See Gall, 552 U.S. at 51 (characterizing “fail[ure] to
adequately explain the chosen sentence” and “any deviation from the Guidelines range” as a
“procedural error”). But here, Lemke’s assertion to that effect is factually inaccurate, and
therefore unavailing, in any event.
12
the district court emphasized that “a line must clearly be drawn between protected
speech and criminal threats.” Id. at 193–94. As for “the history . . . of the
defendant and the need for the sentence imposed . . . to protect the public from
further crimes of the defendant,” the district court explained that “Lemke ha[d]
committed previous crimes of seeking to intimidate others,” and that the above-
Guidelines “sentence [was] intended . . . to incapacitate him from committing such
crimes in the future.” Id. As for the “need . . . to provide just punishment for the
offense,” the district court homed in on the callous inhumanity of Lemke’s
willingness to threaten not only the “senators, congressmen, and journalists”
whose political speech he actually intended to stifle, but also their “spouses,
children, and grandparents.” Id. at 191, 194.
Given this careful and compelling analysis of the section 3553(a) factors, we
have no doubt that “the district court’s decision that [such] factors, on [the] whole,
justif[ied] the extent of the variance,” Gall, 552 U.S. at 51, “resulted from the
reasoned exercise of discretion,” Cavera, 550 F.3d at 193. And “once we are sure
that the sentence resulted from the reasoned exercise of discretion, we must defer
heavily to the expertise of [the] district judge[].” Id.; see also United States v. Jones,
531 F.3d 163, 170–71 (2d Cir. 2008) (discussing “district courts[’] . . . distinct
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institutional advantages over appellate courts in determining what sentence best
achieves the purposes of [section] 3553(a) in a given case”). At bottom, Lemke
“has presented us with no compelling reason to second[-]guess the determination
of the [d]istrict [c]ourt that these factors warrant a variance from the Guidelines of
the magnitude imposed here.” Pope, 554 F.3d at 247. Accordingly, we cannot
say that the district court’s imposition of a thirty-six-month term of imprisonment
was substantively unreasonable or otherwise outside of “the range of permissible
decisions.” Cavera, 550 F.3d at 189.
We have considered Lemke’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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