09-3315-cr
United States v. Schlussel

                                   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 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 7th day of July, two thousand and ten.

PRESENT:

          ROGER J. MINER,
          JOSÉ A. CABRANES,
          RICHARD C. WESLEY,
                 Circuit Judges.

-------------------------------------------x

UNITED STATES OF AMERICA ,

                              Appellee,

          v.                                                                               No. 09-3315-cr

MICHAEL SCHLUSSEL,

                              Defendant-Appellant.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

FOR APPELLANT:                                     MICHAEL HURWITZ, Hurwitz Stampur & Roth, New York,
                                                   New York.

FOR APPELLEE:                                      JULIAN J. MOORE (Preet Bharara, United States Attorney, and
                                                   Michael A. Levy and William J. Harrington, Assistant United
                                                   States Attorneys, on the brief), Office of the United States


                                                                 1
                                        Attorney for the Southern District of New York, New York,
                                        New York.

       Appeal from a July 30, 2009 judgment of conviction entered by the United States District
Court for the Southern District of New York (John F. Keenan, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s judgment be AFFIRMED.

         Following trial in the District Court, a jury found defendant-appellant Michael Schlussel
guilty of one count of mail fraud, 18 U.S.C. § 1341, and one count of conspiracy to commit mail
fraud, id. § 1349. The Court sentenced him principally to 108 months’ imprisonment and
restitution of $646,750.

        Schlussel brings this appeal arguing that the evidence at trial was insufficient for the jury to
find him guilty on the conspiracy count. He also claims that in calculating his advisory sentencing
range under the United States Sentencing Guidelines (U.S.S.G.), the District Court erroneously
applied two enhancements: a four-level role enhancement under U.S.S.G. § 3B1.1 and a two-level
enhancement for use of sophisticated means under § 2B1.1(b)(9).

         With respect to the conspiracy count, after reviewing the trial record and “crediting every
inference that could have been drawn in the government’s favor,” United States v. Chavez, 549 F.3d
119, 124 (2d Cir. 2008), we conclude that the evidence was sufficient for the jury to reach a guilty
verdict.

         With respect to the sentence, we detect no error in the District Court’s calculation of
Schlussel’s advisory Guidelines range. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en
banc). The record adequately supports the District Court’s application of enhancements under
U.S.S.G. § 3B1.1 and § 2B1.1(b)(9), and the Court’s findings in applying those enhancements were
“sufficiently specific to permit meaningful appellate review.” United States v. Ware, 577 F.3d 442, 452
(2d Cir. 2009).

       We have considered all of Schlussel’s arguments on appeal and have determined that they
are meritless.




                                                    2
                               CONCLUSION

For the foregoing reasons, the July 30, 2009 judgment of conviction is AFFIRMED.




                                    FOR THE COURT,

                                    Catherine O’Hagan Wolfe, Clerk of Court




                                       3
