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. At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 20thday of May, two thousand fifteen. 3 4 PRESENT: 5 PIERRE N. LEVAL, 6 GERARD E. LYNCH, 7 CHRISTOPHER F. DRONEY, 8 Circuit Judges. 9

_____________________________________ 10 11 UNITED STATES OF AMERICA, 12 13 Appellee , 14 15 v. No. 14-1755-cr 16 17 MARK ANSELM, 18 19 Defendant-Appellant

. 20

_____________________________________ 21 22 23 

### FOR APPELLANT: JAMES F. GREENWALD, Assistant Federal 24 

### Public Defender (James P. Egan, Research and 25 

### Writing Attorney, on the brief ) for Lisa A. 26 

### Peebles, Federal Public Defender, Syracuse, 27 

### NY. 28 29 30

### FOR APPELLEE: RAJIT S. DOSANJH, Assistant United States 1 

### Attorney, for Richard S. Hartunian, United 2 

### States Attorney for the Northern District of New 3 

### York, Syracuse, NY. 4 5 

### Appeal from a judgment of the United States District Court for the Northern 6 

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

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

### AND DECREEDthat the judgment is AFFIRMED

. 9 

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

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

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

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


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

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

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

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

### 1. Loss Calculation 18 

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

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

### Anselm 20 

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

1

### On appeal, Anselm “concedes . . . [that] his business dealings with Ognenovski were relevant conduct.” Appellant’s Br. at 25. 2

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

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

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

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

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

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

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

### below $120,000. 8 

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

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


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

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

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

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

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

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

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

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

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

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

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


### 3

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

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

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

### quotation marks omitted). 4 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


### 4

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

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

### that evidence rather on highly contestable inferences from bookkeeping inconsistencies 3 

### was not clearly erroneous. 4 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

### 2. Abuse of a Position of Trust 19 

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

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


### 5

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


### 6

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

### quotation marks omitted). 16 

### 3. Substantive Reasonableness 17 

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

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

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

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


### 7

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

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

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

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

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

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

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

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

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

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

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

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

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

. 13


### FOR THE COURT: 14 

### Catherine O’Hagan Wolfe, Clerk 15 16 17



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