United States of America v. Michael E. Luepke

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 8, 2008
Decided October 10, 2008
Before
KENNETH F. RIPPLE, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐3711
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MICHAEL E. LUEPKE,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 06‐CR‐091‐C‐01
Barbara B. Crabb,
Chief Judge.
O R D E R
After a lengthy investigation, Michael Luepke was indicted on three counts of
conspiring to distribute and distributing methamphetamine under 21 U.S.C. § 841(a)(1) and
§ 846. The day of his arrest he kicked and damaged the door of the vehicle transporting him
to court, which led to an additional charge of attempting to escape from custody under 18
U.S.C. § 751(a). Luepke eventually pleaded guilty to one count of conspiracy to distribute
more than fifty grams of a mixture containing methamphetamine. The district court
sentenced him to 240 months of imprisonment, within the guidelines range of 210 to 262
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐3711 Page 2
months. He appealed, and we remanded for resentencing because he was not given a
meaningful opportunity to address the court before being sentenced. United States v. Luepke,
495 F.3d 443 (7th Cir. 2007). On remand, the district court sentenced Luepke to 220 months.
Luepke has again appealed, but his appointed counsel moves to withdraw because counsel
discerns no nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967).
Luepke did not accept our invitation to respond to his lawyer’s brief, see CIR. R. 51(b), so we
limit our review to the potential issues identified in counsel’s facially adequate brief. United
States v. Schuh, 289 F.3d 968, 973‐34 (7th Cir. 2002).
Counsel first considers whether Luepke could challenge his guilty plea in any
manner, but as counsel recognizes, he waived any such argument by not raising it in his
first appeal. United States v. Swanson, 483 F.3d 509, 515 (7th Cir. 2007).
Counsel next considers whether Luepke could challenge the reasonableness of his
sentence. We review sentencing decisions for abuse of discretion to ensure that the
guidelines range is properly calculated, that the court adequately considered the factors
under 18 U.S.C. § 3553(a), and that the sentence is substantively reasonable. Gall v. United
States, 128 S. Ct. 586, 596‐97 (2007). We presume a correctly calculated sentence to be
reasonable. See Rita v. United States, 127 S. Ct. 2456, 2462‐64 (2007); United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005).
Luepke’s sentence was correctly calculated using the 2005 guidelines and March
2006 supplement, and is the same under the current version. The court appropriately
considered the § 3553(a) factors, including Luepke’s history and characteristics, the
circumstances of his offense, the need for deterrence, and the protection of the community.
The court considered Luepke’s request for a below‐guidelines sentence because he took
methamphetamine to alleviate his Attention Deficit Hyperactivity Disorder, but concluded
that his distribution of large quantities of methamphetamine to numerous people warranted
a within‐guidelines sentence. This was all that was required.
Counsel next addresses the issues that Luepke specifically wished to raise. First,
counsel considers whether Luepke should have received an acceptance‐of‐responsibility
adjustment for pleading guilty and cooperating with the government’s investigation. See
U.S.S.G. § 3E1.1(a). A defendant is not entitled to the adjustment merely for pleading
guilty. U.S.S.G. § 3E1.1 cmt. n.3; United States v. Krasinski, No. 07‐1965, 2008 WL 4276589, at
*7 (7th Cir. Sept. 19, 2008). Moreover, when a defendant receives an adjustment for
obstruction of justice, that “ordinarily indicates that the defendant has not accepted
responsibility,” though there may be “extraordinary cases” in which both adjustments
apply. U.S.S.G. § 3E1.1 cmt. n.4; Krasinski, 2008 WL 4276589, at *7. The PSR reflects, and the
court found, that Luepke threatened to have an associate beaten if the associate talked to the

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No. 07‐3711 Page 3
police about him (conduct for which Luepke received an obstruction‐of‐justice adjustment),
that he continued to distribute methamphetamine long after he became aware of the
investigation into his activities, and that he kicked and damaged the door of the vehicle
transporting him to the courthouse the day of his arrest. Given this conduct, his plea and
assistance to law enforcement do not make his case extraordinary.
Counsel next addresses whether the court erred in adjusting Luepke’s sentence
upward for possessing a weapon that Luepke did not brandish or use. But brandishing or
use is not an element of weapon possession; the guideline requires only that a defendant
“possessed” the weapon. See U.S.S.G. § 2D1.1(b)(1); U.S.S.G. § 2D1.1 cmt. n.3; United States
v. Womack, 496 F.3d 791, 797‐98 (7th Cir. 2007). As the district court noted, Luepke does not
dispute that he twice possessed a gun during a drug transaction: once when he traded guns
for methamphetamine, and once when he answered the knock of a drug customer with a
gun in his pocket. Those facts are all that is needed to warrant the upward adjustment.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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