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.

_____________________________________
2

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, 
3

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, 
4

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).
5

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 
6

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 
7

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 
8

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] 
9

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.
10

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.
11

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).
12

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.
13

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 aboveGuidelines “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 
14

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