United States v. Brian Lemke , 693 F.3d 731 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2662
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B RIAN L EMKE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 385—Blanche M. Manning, Judge.
A RGUED F EBRUARY 13, 2012—D ECIDED A UGUST 17, 2012
Before P OSNER, W OOD , and SYKES, Circuit Judges.
W OOD , Circuit Judge. Taking an unfortunate frame
from the 1996 movie The Cable Guy, Brian Lemke met a
woman while working as a serviceman in her home,
pursued her, and eventually left threatening telephone
messages for her. Indicted for violating 18 U.S.C. § 875(c),
which prohibits transmitting threatening communica-
tions in interstate commerce, Lemke was convicted by a
jury and sentenced to 24 months’ imprisonment. He
2 No. 11-2662
now appeals only his sentence, which he complains
is unreasonable and excessive.
I
From 1993 until around 2000, Barbara Ferry hired
Lemke from time to time to service the heating and air
conditioning system in her Lockport, Illinois, home. She
stopped using him after he telephoned her and said that
he could “come and fix her heat if [she went] out to
dinner with [him].” She refused, telling him that the
request was inappropriate, and ended the call. After
discussing the matter with her then-husband, she
filed a complaint with the Better Business Bureau. Ferry
eventually divorced and moved to Chicago; she had
no contact with Lemke for several years. In June 2008,
however, Lemke left seven voicemail messages on
Ferry’s home phone. The messages were bizarre and
harassing. Concerned, Ferry asked Jeffrey Brown, a
man with whom she had been on one date, to ask
Lemke to stop calling her. Brown left a message on
Lemke’s answering machine, threatening him if the
calls did not stop.
Lemke tried to find the man who left that message.
He found a Jeffrey Brown (unbeknownst to him, a
different one) and left several hostile messages on his
answering machine. The threatening nature of the mes-
sages escalated, and in August 2008 Lemke threatened
to kill Brown. Having no idea who was doing this or
why, Brown, an attorney, informed first his law firm
and later police and the FBI. The messages continued
No. 11-2662 3
into 2009. FBI agent Mark Wallschlaeger notified Lemke
in March 2009 that he had been contacting the wrong
person and instructed him to stop harassing Brown.
Lemke then turned his attention to Caroll Barry, Ferry’s
divorce attorney, and left threatening messages for
her. Agent Wallschlaeger again notified Lemke that he
should stop the harassment; this time he warned that
Lemke would face prosecution if he did not. Lemke
paid no attention to the warning; instead, he left two
more aggressive messages for Brown and Barry. The
FBI conducted an investigation into Lemke’s harassment
of men named Jeffrey Brown living in Chicago and dis-
covered that three of the seven men meeting that de-
scription had received threatening calls from an
unknown caller in 2008. On April 22, 2009, a security
officer at Ferry’s place of employment reported seeing
Lemke on the premises that evening. An arrest warrant
was issued for Lemke on April 24, 2009.
Just before Lemke’s arrest, Agent Wallschlaeger left
a message for Lemke informing him that Wallschlaeger
was on his way over to Lemke’s house to have a con-
versation. When the FBI agents and Joliet police officers
arrived, Lemke was in the yard mowing the lawn.
Lemke resisted when he was informed that he was
under arrest. After the agents subdued him, they dis-
covered a revolver loaded with hollow-point bullets
hidden under his shirt. Upon entering Lemke’s
house, Agent Wallschlaeger found a hand-drawn map
of Ferry’s apartment and a map, work address, and
residential addresses of various Jeffrey Browns. He also
discovered the work address for the Brown who is the
victim in this case.
4 No. 11-2662
Lemke was charged with two counts of knowingly
transmitting in interstate commerce a communication
containing a threat to injure the person of another, in
violation of 18 U.S.C. § 875(c). He was convicted of both
counts following a jury trial. The district court set the
offense level at 20 with a criminal history category of I
for a sentencing range of 33 to 41 months. It then
exercised its discretion to choose a below-guidelines
sentence, and imposed a term of 24 months’ imprison-
ment. Lemke thinks that the sentence should have
been lower yet, and so he has brought this appeal.
II
The district court is entitled to “considerable discre-
tion” in fashioning a sentence. When considering the
overall reasonableness of a sentence, we thus look ulti-
mately for abuse of discretion. United States v. Jackson, 547
F.3d 786, 792 (7th Cir. 2008). Along the way, we must
ensure that the district court did not make any pro-
cedural errors; if it did not, then we evaluate the sen-
tence’s substantive reasonableness. Id. Lemke faces an
uphill battle on appeal, given that his sentence is pre-
sumptively reasonable because it is below the applicable
Guidelines range. See, e.g., United States v. Balbin-Mesa,
643 F.3d 783, 788 (10th Cir. 2011); United States v.
Poetz, 582 F.3d 835, 837 (7th Cir. 2009).
We first consider whether the district court properly
considered the sentencing factors spelled out in 18 U.S.C.
§ 3553(a) and adequately explained their application to
Lemke’s case. We find that it did. First, the district court
No. 11-2662 5
allowed extensive testimony at sentencing: Lemke spoke
on his own behalf; Thomas A. Dunn, Lemke’s cousin,
offered positive character witness testimony; and Ferry
testified about the negative impact Lemke’s actions had
on her life. The court also invited the parties to present
their arguments on mitigation and aggravation. At the
conclusion of argument, the court discussed the § 3553(a)
factors in detail. It noted the letters submitted on
Lemke’s behalf and commended Lemke for offering
free or discounted services for the elderly and the poor
in his community. The court was not convinced, how-
ever, that in the case before it Lemke had acted out of
any reasonable provocation, because “several months, as
I recall, two or three months had passed between the
time he received the message that he received from
Jeff Brown and when he left the first threatening
message for which he was convicted.” It found more
compelling the victim impact statements, the need
for deterrence, and Lemke’s resistance when he was
arrested. We see nothing in this record that would sup-
port a procedural challenge to Lemke’s sentence, and
indeed, we do not understand him to be making such
an argument.
Instead, Lemke has placed all of his cards on his argu-
ment that his 24-month sentence is substantively unrea-
sonable. He insists that he was provoked by the first
Brown to send a threatening message, but that he
would never do such a thing again. He asserts that pro-
bation would be a sufficiently humiliating punishment
because he is an upstanding citizen in his community.
The problem is that these points at best suggest that the
6 No. 11-2662
district court might also have selected a lesser sentence;
they say nothing about whether the sentence the court
imposed is unreasonable. From the standpoint of the
appellate court, the actual sentence is entitled to a pre-
sumption of reasonableness, and so it was Lemke’s
difficult burden to point to some reason to think that
this sentence was entirely out of bounds. For what it
is worth, we find it, if anything, to be lenient; it is
certainly not unreasonably high. The government
reminds us that Lemke’s actions were “disturbing
and frightening,” particularly because he continued
to scare his victims even after being warned by the FBI;
investigators found maps of his victims’ locations in
Lemke’s house; and he resisted arrest. The district court
considered these arguments and gave Lemke a be-
low-guidelines sentence.
III
Lemke has not persuaded us that his sentence was
either excessive or unreasonable, and so we A FFIRM the
judgment of the district court.
8-17-12