     12-2051-cr
     United States v. Schulze

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of March, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOSÉ A. CABRANES,
 9                RICHARD C. WESLEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Plaintiff-Appellee,
15
16                    -v.-                                               12-2051-cr
17
18       CHRISTOPHER SCHULZE,
19                Defendant-Appellant,
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        David A. Lewis, Federal
23                                             Defenders of New York, Inc., New
24                                             York, New York.
25
26       FOR APPELLEES:                        Marcia S. Cohen, (Katherine Polk
27                                             Failla, on the brief), for Preet
28                                             Bharara, United States Attorney

                                                  1
 1                              for the Southern District of New
 2                              York, New York, New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Southern District of New York (Preska, C.J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Christopher Schulze appeals from the judgment of the
12   United States District Court for the Southern District of
13   New York (Preska, C.J.), sentencing him to 262 months’
14   imprisonment after he pleaded guilty to attempting to
15   solicit a minor to engage in sexual acts and to possessing
16   child pornography. We assume the parties’ familiarity with
17   the underlying facts, the procedural history, and the issues
18   presented for review.
19
20        “[A] district court’s decision not to grant a defendant
21   a section 3E1.1 adjustment [for acceptance of
22   responsibility] is ‘entitled to great deference on review.’”
23   United States v. Taylor, 475 F.3d 65, 68 (2d Cir. 2007)
24   (quoting U.S.S.G. § 3E1.1 cmt. n.5). “Whether a defendant
25   has carried his burden to demonstrate acceptance of
26   responsibility is a factual question on which we defer to
27   the district court unless its refusal to accord such
28   consideration is without foundation.” United States v.
29   Broxmeyer, 699 F.3d 265, 284 (2d Cir. 2012) (internal
30   quotation marks omitted) (citing Taylor, 475 F.3d at 68).
31
32        1.  Judge Preska’s finding that Schulze had not
33   accepted responsibility was based on a thoughtful analysis
34   of the circumstances of the case, including instances in
35   which Schulze claimed that he thought he had been “role
36   playing” with an adult. We therefore reject Schulze’s
37   argument that Judge Preska’s finding was “without
38   foundation.”
39
40        2.  That Judge Robinson concluded that Schulze was
41   entitled to the acceptance-of-responsibility adjustment at
42   the first sentencing is of no matter. “[W]hen a sentence
43   has been vacated, the defendant is placed in the same
44   position as if he had never been sentenced.”   United States
45   v. Maldonado, 996 F.2d 598, 599 (2d Cir. 1993) (per curiam).
46


                                  2
1        For the foregoing reasons, and finding no merit in
2   Schulze’s other arguments, we hereby AFFIRM the judgment of
3   the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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