         14-1755-cr
         United States v. Anselm



                                   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.

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       20th day of May, two thousand fifteen.
 4
 5       PRESENT:
 6                   PIERRE N. LEVAL,
 7                   GERARD E. LYNCH,
 8                   CHRISTOPHER F. DRONEY,
 9                         Circuit Judges.
10       _____________________________________
11
12       UNITED STATES OF AMERICA,
13
14                                  Appellee,
15
16                         v.                                               No. 14-1755-cr
17
18       MARK ANSELM,
19
20                         Defendant-Appellant.
21       _____________________________________
22
23
24       FOR APPELLANT:                               JAMES F. GREENWALD, Assistant Federal
25                                                    Public Defender (James P. Egan, Research and
26                                                    Writing Attorney, on the brief) for Lisa A.
27                                                    Peebles, Federal Public Defender, Syracuse,
28                                                    NY.
29
30
 1   FOR APPELLEE:                              RAJIT S. DOSANJH, Assistant United States
 2                                              Attorney, for Richard S. Hartunian, United
 3                                              States Attorney for the Northern District of New
 4                                              York, Syracuse, NY.
 5
 6          Appeal from a judgment of the United States District Court for the Northern

 7   District of New York (Glenn T. Suddaby, J.).

 8          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 9   AND DECREED that the judgment is AFFIRMED.

10          Mark Anselm challenges his 84-month sentence, imposed after he pleaded guilty

11   to (i) one count of making a false statement, in violation of 18 U.S.C. § 1001; (ii) four

12   counts of possession and use of an altered merchant marine license, in violation of 18

13   U.S.C. § 2197; and (iii) one count of aggravated identity theft, in violation of § 18 U.S.C.

14   1028A. Anselm argues that the district court erred in applying a ten-level loss

15   enhancement under U.S.S.G. § 2B1.1 and a two-level enhancement for abuse of a

16   position of trust under U.S.S.G. § 3B1.3. He also argues that his sentence is substantively

17   unreasonable. We assume the parties’ familiarity with the facts and procedural history.

18          1.     Loss Calculation

19          The district court found that Anselm’s relevant conduct caused a loss of between

20   $120,000 and $200,000 to Anselm’s business partner, Kocho Ognenovski.1 Anselm

21   claims that this loss calculation was erroneous in two respects. First, he argues that the



            1
              On appeal, Anselm “concedes . . . [that] his business dealings with Ognenovski
     were relevant conduct.” Appellant’s Br. at 25.

                                                   2
 1   district court erred in not subtracting from the loss amount approximately $103,000 he

 2   alleges that Ognenovski recovered in profits through his control of their business’s

 3   checking accounts between April and September of 2012. Second, Anselm asserts that

 4   there was insufficient evidence to find that Ognenovski advanced Anselm the entire

 5   $170,000 alleged by Ognenovski and the government. Anselm notes that the government

 6   was able to corroborate only $147,600 of this amount. Subtracting from $147,600 the

 7   $38,000 that Ognenovski acknowledges recovering from Anselm would yield a loss

 8   below $120,000.

 9          “A district court’s factual findings relating to loss must be established by a

10   preponderance of the evidence, and we review them for clear error.” United States v.

11   Brennan, 395 F.3d 59, 74 (2d Cir. 2005) (citations and internal quotation marks omitted).

12   Under § 2B1.1, loss amount equals “the greater of actual loss or intended loss.” U.S.S.G.

13   § 2B1.1, cmt. n.3(A). “Actual loss” is the “reasonably foreseeable pecuniary harm that

14   resulted from the offense,” id., and does not include “interest of any kind, . . . penalties, . .

15   . or other similar costs,” id., cmt. n.3(D)(i). “In a case involving collateral pledged or

16   otherwise provided by the defendant,” the loss amount is reduced by “the amount the

17   victim has recovered at the time of sentencing from disposition of the collateral, or if the

18   collateral has not been disposed of by that time, the fair market value of the collateral at

19   the time of sentencing.” Id., cmt. n.3(E)(ii). Loss is likewise reduced by any “money

20   returned, and the fair market value of the property returned and services rendered, by the

21   defendant or other persons acting jointly with the defendant, to the victim before the

                                                    3
 1   offense was detected.” Id., cmt. n.3(E)(I). The court “need not establish the loss with

 2   precision but rather need only make a reasonable estimate of the loss, given the available

 3   information.” United States v. Carboni, 204 F.3d 39, 46 (2d Cir. 2000) (internal

 4   quotation marks omitted).

 5          The district court’s loss calculation was not clearly erroneous. At a loss amount

 6   hearing in advance of sentencing, the government referenced a default judgment obtained

 7   by Ognenovski against Anselm on November 15, 2012 in New York State Supreme Court

 8   in a suit alleging that Ognenovski advanced Anselm $170,000 under false pretenses and

 9   had recovered only $38,000 of this amount. It also produced a “Profit and Loss Detail”

10   prepared by Ognenovski’s accountant that purported to show that Anselm and

11   Ognenovski’s business lost money from April to December of 2012. Finally, the

12   government presented a February 14, 2013 “General Assignment of Proceeds” agreement

13   between Anselm and Ognenovski, in which Anselm acknowledged that the default

14   judgment was “duly filed . . . and remain[ed] unpaid,” and assigned his right to “to all

15   monies . . . from any source whatsoever” to satisfy the judgment. Appellant’s App’x at

16   187-88. In combination, these documents provide a reasonable basis for the district

17   court’s decision not to deduct the $103,000. Given the ambiguous bookkeeping, the

18   district court reasonably relied on the fact that Anselm had acknowledged that the default

19   judgment remained unpaid in February 2013 – months after the period in which

20   Ognenovski supposedly recovered profits from their business that would offset some of

21   the loss amount. While Anselm advances various arguments against crediting his

                                                  4
 1   acknowledgment of the default judgment as evidence of the debt, a reasonable fact finder

 2   would not be compelled to accept those arguments, and the district court’s reliance on

 3   that evidence rather on highly contestable inferences from bookkeeping inconsistencies

 4   was not clearly erroneous.

 5          The district court also had a sufficient basis to find that Ognenovski advanced

 6   Anselm the entire $170,000. Notably, in the General Assignment of Proceeds, Anselm

 7   acknowledged a default judgment in a suit alleging that he was advanced $170,000.

 8   Anselm maintains that this acknowledgment should be afforded little weight because he

 9   considered himself judgment proof and thus had no reason to contest the debt. But the

10   amount of the advance was largely corroborated by Anselm’s bank records. While

11   Anselm emphasizes that the government was able to specifically corroborate only

12   $147,600 in advances, this corroboration consisted of matching Anselm’s deposits with

13   the amounts and dates on which Ognenovski claims to have advanced him money. The

14   district court could reasonably conclude, given the other evidence, that Anselm simply

15   did not deposit the remaining $22,400. While “Anselm never acknowledged receiving

16   more than $120,000,” Appellant’s Br. at 25, this position was contradicted by his bank

17   records. To the extent that Anselm’s bank records did not align perfectly with either

18   side’s version, the district court did not err in crediting the government’s explanation.

19          2.     Abuse of a Position of Trust

20          Section 3B1.3 of the Sentencing Guidelines provides for a two-level increase for

21   abuse of a position of trust “in a manner that significantly facilitated the commission or

                                                   5
 1   concealment of the offense.” The enhancement requires a “direct nexus between a

 2   position of trust, the abuse of that trust, and the facilitation of the commission or

 3   concealment of the relevant offense conduct.” United States v. Nuzzo, 385 F.3d 109, 117

 4   (2d Cir. 2004). We review de novo the question of what constitutes a position of trust

 5   and review for clear error the district court’s finding that the defendant’s abuse of a

 6   position of trust significantly facilitated his offense. United States v. Santoro, 302 F.3d

 7   76, 80 (2d Cir. 2002).

 8          We reject Anselm’s argument that he did not occupy a position of trust. A position

 9   of trust is one “characterized by professional or managerial discretion.” U.S.S.G.

10   § 3B1.3, cmt. n.1. “[T]he primary trait that distinguishes a position of trust from other

11   positions is the extent to which the position provides the freedom to commit a

12   difficult-to-detect wrong.” United States v. Laljie, 184 F.3d 180, 194 (2d Cir. 1999)

13   (internal quotation marks omitted). “Whether a given position is one of trust . . . is to be

14   viewed from the perspective of the offense victims and . . . will depend on the practice of

15   the employer who is victimized.” Id. at 195 (citation omitted). Here, Anselm used an

16   altered merchant marine license to gain a position as captain of a tugboat owned by

17   Ognenovski. He performed this role without supervision, enabling him to use the tugboat

18   for unauthorized purposes without detection. This is precisely the sort of autonomy we

19   have held to characterize a position of trust. See, e.g., United States v. Allen, 201 F.3d

20   163, 166-67 (2d Cir. 2000) (holding that officer manager who “had no regular or direct

21   supervision” and was authorized to write checks and control budget preparations held a

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 1   position of trust); United States v. Castagnet, 936 F.2d 57, 58, 61-62 (2d Cir. 1991)

 2   (upholding abuse of trust enhancement where airline station agent used knowledge of

 3   computer access code to issue unauthorized tickets to himself).

 4          Anselm argues that even if he occupied a position of trust, he did not abuse that

 5   position because captaining Ognenovski’s tugboat was not an act falling outside his

 6   responsibilities. But the fact that Anselm was entrusted with captaining the tugboat does

 7   not mean that any operation of the tugboat was within the scope of his responsibilities.

 8   Indeed, by taking the tugboat into Canadian waters, where he ran it aground, Anselm

 9   acted contrary to his agreement with Ognenovski, which prohibited him from using the

10   tugboat for any projects unrelated to their joint business. Anselm’s argument is akin to an

11   accountant who embezzles money from a company claiming that he has not abused a

12   position of trust because he was authorized to write checks. Moreover, Anselm also used

13   his control of the tugboat to attempt to redocument it under a new name, claiming to be its

14   owner. Thus, Anselm abused his position affording him unsupervised control of

15   another’s assets “to commit a difficult-to-detect wrong.” Laljie, 184 F.3d at 194 (internal

16   quotation marks omitted).

17          3.     Substantive Reasonableness

18          Anselm’s substantive unreasonableness argument largely overlaps with his claim

19   of procedural error: he maintains that the loss calculation cannot serve as a valid basis for

20   a threefold increase in his Guidelines range. To the extent this is an assertion that the loss

21   calculation or Guideline calculation was erroneous, we reject it for the reasons set forth

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 1   above. We also reject his substantive reasonableness challenge as a stand-alone claim.

 2   Substantive reasonableness review “provide[s] a backstop for those few cases that,

 3   although procedurally correct, would nonetheless damage the administration of justice

 4   because the sentence imposed was shockingly high, shockingly low, or otherwise

 5   unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir.

 6   2009). Here, the district court correctly noted that Anselm demonstrated a “consistent

 7   pattern of taking advantage of multiple victims throughout his adult life” that had

 8   continued undeterred by his previous incarceration. Appellant’s App’x at 262-63.

 9   Anselm’s extensive criminal history, most of which involved fraudulent behavior similar

10   to his current offenses, was a permissible basis for the district court to conclude that a

11   longer sentence than Anselm had received for his previous offenses was warranted.

12          We have considered all of Anselm’s remaining arguments and find them to be

13   without merit. Accordingly, the judgment of the district court is AFFIRMED.

14                                              FOR THE COURT:
15                                              Catherine O’Hagan Wolfe, Clerk
16
17




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