United States v. Schulze , 516 F. App'x 74 ( 2013 )

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
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13 UNITED STATES OF AMERICA,
14 Plaintiff-Appellee,
15
16 -v.- 12-2051-cr
17
18 CHRISTOPHER SCHULZE,
19 Defendant-Appellant,
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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
3