18‐72 United States v. Schlisser
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of April, two thousand and nineteen.
Present: BARRINGTON D. PARKER, PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges.
United States of America,
Appellee,
v. 18-72-cr
Michael Schlisser, AKA Mickey Schlisser
Defendant-Appellant.
For Appellee: ELIZABETH A. HANFT (Anna M. Skotko, on the brief), Assistant United States Attorney, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.
For Defendant-Appellant: STEVEN YUROWITZ, Newman & Greenberg LLP, New York, NY. Appeal from a December 21, 2017 judgment of the United States District Court
for the Southern District of New York (Caproni, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.
Michael Schlisser appeals from a judgment dated December 21, 2017,
convicting him, following a guilty plea, of one count of wire fraud in violation of 18
U.S.C. §§ 1343 and 2. The district court calculated the sentencing guidelines range
to be 31 to 37 months’ imprisonment but sentenced Schlisser principally to 84 months’
imprisonment pursuant to an upward variance “in light of the similarity between this
and his prior fraud offense, and the fact that it was so close to when he got off of
supervised release, regardless of whether it was actually committed while he was on
supervised release.” App’x. 61–62. On appeal, Schlisser challenges the validity of his
guilty plea and argues his sentence is both procedurally and substantively
unreasonable. We assume the parties’ familiarity with the underlying facts, the
procedural history, and the issues on appeal.
A. The Validity of Schlisser’s Guilty Plea
Schlisser argues that his guilty plea is invalid for two reasons. The district
court impermissibly restricted his ability to communicate with his attorneys when it
instructed Schlisser not to look at defense counsel after the court had asked him to
describe what his intent was when he solicited investments from his victims, and
there was an insufficient factual basis for his plea. We are not persuaded.
We review for plain error an unobjected-to error in a trial court’s guilty plea
proceeding. United States v. Vonn, 535 U.S. 55, 58 (2002). Plain error review requires
a defendant to show that: “(1) there was error, (2) the error was plain, (3) the error
prejudicially affected his substantial rights, and (4) the error seriously affected the
fairness, integrity or public reputation of judicial proceedings.” United States v.
Youngs, 687 F.3d 56, 59 (2d Cir. 2012).
Before accepting a guilty plea, Fed. R. Crim. P. 11 requires a district court to
assess whether a defendant understands the consequences of pleading guilty and the
rights he would give up by doing so and to determine whether there is a factual basis
for the plea. Fed. R. Crim. P. 11(b)(1)-(3); United States v. Maher, 108 F.3d 1513, 1524
(2d Cir. 1997) (explaining that Rule 11 only requires that the court confirm “that the
conduct to which the defendant admits is in fact an offense under the statutory
provision under which he is pleading guilty”). The Sixth Amendment provides for a
defendant to be represented by counsel at all critical stages of a criminal case,
including the entry of a guilty plea. Iowa v. Tovar, 541 U.S. 77, 80 (2004) (internal
citations omitted). Generally, a defendant must be able to communicate with counsel
in order to have that counsel’s effective assistance. United States v. Triumph Capital
Grp., Inc., 487 F.3d 124, 129 (2d Cir. 2007).
Schlisser had the benefit of his attorneys’ effective representation both prior to
and during the entry of his guilty plea. Schlisser testified that he had discussed with
counsel the consequences of pleading guilty prior to the plea proceeding. The district
court explicitly advised Schlisser of his right to counsel during the proceeding, and
Schlisser exercised that right by consulting his counsel on how to answer the district
court’s question about his expenses. At no point did Schlisser make a request to speak
with counsel that the court denied.
Schlisser hinges his argument that he was denied access to counsel on the
following exchange during the Rule 11 proceeding:
THE COURT: When you were soliciting people to invest in your investments, did you know when you were soliciting money that you intended to use some of the proceeds for your personal use for tuition, for car payments, for house payments, for living expenses. Don’t look at him. You know whether that was what was in your head or not. You are pleading guilty. Now is the time to come clean. There is no reason to play games. THE DEFENDANT: Your honor, I am not playing games . . . The answer is yes. Yes, I knew when the money was coming in. THE COURT: When you were soliciting money you knew notwithstanding the fact that you were promising these people not to use it for your personal use that you were in fact going to use it for your personal use? THE DEFENDANT: Yes, I was. Yes I did, your honor. App’x. 43. At that point Schlisser never asked to confer with counsel. Just before
this exchange, Judge Caproni explained that Schlisser could confer with his attorneys
whenever he wished. Moreover, it is quite clear that at that moment the district court
was seeking to have Schlisser describe with his own words, not those of his attorneys,
his intent behind his actions. The district court’s instruction was not in error given
that only Schlisser could know and articulate what his intent was when he solicited
the investments from his victims.
Schlisser also argues that his guilty plea was involuntary because the district
court coerced him into admitting that he possessed an intent to defraud. But where, 4
as here, “a defendant, before sentencing, learns of” a Rule 11 violation “but fails to
attempt to withdraw his plea based on that violation, there can be no reasonable
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18‐72 United States v. Schlisser
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of April, two thousand and nineteen.
Present: BARRINGTON D. PARKER, PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges.
United States of America,
Appellee,
v. 18-72-cr
Michael Schlisser, AKA Mickey Schlisser
Defendant-Appellant.
For Appellee: ELIZABETH A. HANFT (Anna M. Skotko, on the brief), Assistant United States Attorney, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.
For Defendant-Appellant: STEVEN YUROWITZ, Newman & Greenberg LLP, New York, NY. Appeal from a December 21, 2017 judgment of the United States District Court
for the Southern District of New York (Caproni, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.
Michael Schlisser appeals from a judgment dated December 21, 2017,
convicting him, following a guilty plea, of one count of wire fraud in violation of 18
U.S.C. §§ 1343 and 2. The district court calculated the sentencing guidelines range
to be 31 to 37 months’ imprisonment but sentenced Schlisser principally to 84 months’
imprisonment pursuant to an upward variance “in light of the similarity between this
and his prior fraud offense, and the fact that it was so close to when he got off of
supervised release, regardless of whether it was actually committed while he was on
supervised release.” App’x. 61–62. On appeal, Schlisser challenges the validity of his
guilty plea and argues his sentence is both procedurally and substantively
unreasonable. We assume the parties’ familiarity with the underlying facts, the
procedural history, and the issues on appeal.
A. The Validity of Schlisser’s Guilty Plea
Schlisser argues that his guilty plea is invalid for two reasons. The district
court impermissibly restricted his ability to communicate with his attorneys when it
instructed Schlisser not to look at defense counsel after the court had asked him to
describe what his intent was when he solicited investments from his victims, and
there was an insufficient factual basis for his plea. We are not persuaded.
We review for plain error an unobjected-to error in a trial court’s guilty plea
proceeding. United States v. Vonn, 535 U.S. 55, 58 (2002). Plain error review requires
a defendant to show that: “(1) there was error, (2) the error was plain, (3) the error
prejudicially affected his substantial rights, and (4) the error seriously affected the
fairness, integrity or public reputation of judicial proceedings.” United States v.
Youngs, 687 F.3d 56, 59 (2d Cir. 2012).
Before accepting a guilty plea, Fed. R. Crim. P. 11 requires a district court to
assess whether a defendant understands the consequences of pleading guilty and the
rights he would give up by doing so and to determine whether there is a factual basis
for the plea. Fed. R. Crim. P. 11(b)(1)-(3); United States v. Maher, 108 F.3d 1513, 1524
(2d Cir. 1997) (explaining that Rule 11 only requires that the court confirm “that the
conduct to which the defendant admits is in fact an offense under the statutory
provision under which he is pleading guilty”). The Sixth Amendment provides for a
defendant to be represented by counsel at all critical stages of a criminal case,
including the entry of a guilty plea. Iowa v. Tovar, 541 U.S. 77, 80 (2004) (internal
citations omitted). Generally, a defendant must be able to communicate with counsel
in order to have that counsel’s effective assistance. United States v. Triumph Capital
Grp., Inc., 487 F.3d 124, 129 (2d Cir. 2007).
Schlisser had the benefit of his attorneys’ effective representation both prior to
and during the entry of his guilty plea. Schlisser testified that he had discussed with
counsel the consequences of pleading guilty prior to the plea proceeding. The district
court explicitly advised Schlisser of his right to counsel during the proceeding, and
Schlisser exercised that right by consulting his counsel on how to answer the district
court’s question about his expenses. At no point did Schlisser make a request to speak
with counsel that the court denied.
Schlisser hinges his argument that he was denied access to counsel on the
following exchange during the Rule 11 proceeding:
THE COURT: When you were soliciting people to invest in your investments, did you know when you were soliciting money that you intended to use some of the proceeds for your personal use for tuition, for car payments, for house payments, for living expenses. Don’t look at him. You know whether that was what was in your head or not. You are pleading guilty. Now is the time to come clean. There is no reason to play games. THE DEFENDANT: Your honor, I am not playing games . . . The answer is yes. Yes, I knew when the money was coming in. THE COURT: When you were soliciting money you knew notwithstanding the fact that you were promising these people not to use it for your personal use that you were in fact going to use it for your personal use? THE DEFENDANT: Yes, I was. Yes I did, your honor. App’x. 43. At that point Schlisser never asked to confer with counsel. Just before
this exchange, Judge Caproni explained that Schlisser could confer with his attorneys
whenever he wished. Moreover, it is quite clear that at that moment the district court
was seeking to have Schlisser describe with his own words, not those of his attorneys,
his intent behind his actions. The district court’s instruction was not in error given
that only Schlisser could know and articulate what his intent was when he solicited
the investments from his victims.
Schlisser also argues that his guilty plea was involuntary because the district
court coerced him into admitting that he possessed an intent to defraud. But where, 4
as here, “a defendant, before sentencing, learns of” a Rule 11 violation “but fails to
attempt to withdraw his plea based on that violation, there can be no reasonable
probability that, but for the [Rule 11 violation], he would not have entered the plea,
and the plain error standard is not met.” United States v. Vaval, 404 F.3d 144, 152
(2d Cir. 2005) (considering a Rule 11 omission). Schlisser’s assertion that there was
an insufficient factual basis for his plea because he lacked an intent to defraud is also
without merit. As already noted, he admitted that he was going to use, for personal
expenses, the money he solicited even though he had promised not to, thus
establishing a sufficient factual basis to infer an intent to defraud. See United States
v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997).
On the record before us, the district court did not commit error, let alone plain
error, when accepting Schlisser’s guilty plea.
B. The Reasonableness of Schlisser’s Sentence
Schlisser’s assertion that his sentence is procedurally and substantively
unreasonable is also unpersuasive. We will find procedural error when a district
court “rests its sentence on a clearly erroneous finding of fact” or if it “fails to
adequately explain its chosen sentence.” United States v. Cavera, 550 F.3d 180, 180
(2d Cir. 2008) (en banc). A district court’s sentence will be set aside as substantively
unreasonable “only in exceptional cases where the trial court’s decision cannot be
located within the range of permissible decisions.” Id. at 189 (internal quotation
marks omitted).
A district court commits procedural error when it: (1) fails to calculate the
guidelines range; (2) makes a mistake in its guidelines calculation; (3) treats the
guidelines as mandatory; (4) does not consider the § 3553(a) factors; or (5) bases its
sentence on a clearly erroneous finding of fact. Id. at 190. If, upon review, we
determine the court did not make a procedural error in imposing the sentence, then
we consider the substantive reasonableness of the sentence. Id. at 189. In doing so,
we “take into account the totality of the circumstances, giving due deference to the
sentencing judge’s exercise of discretion.” Id. at 190.
With respect to the procedural reasonableness of his sentence, Schlisser argues
that the district court improperly applied an enhancement for causing a substantial
financial hardship to his victims, an enhancement that would have added two offense
levels if the offense had resulted in such harm. The court did not apply that
enhancement here. Prior to sentencing, it ordered the parties to discuss whether
Section 2B1.1(b)(2) of the guidelines applied. After considering the parties’ views, the
court concluded the enhancement would not apply.
Schlisser contends that the district court did in fact apply the enhancement
later on in the sentencing hearing because after it heard from one of the victims, it
stated “[h]ow is that not substantial financial harm?” The record, however, belies
this assertion. The district court never adjusted its guidelines calculation after
initially concluding the range was 30 to 37 months’ imprisonment. There was no
procedural error.
As to the substantive reasonableness of his sentence, Schlisser asserts that: (1)
his sentence of 84 months—more than twice the amount of the high end of the
applicable guidelines range—far exceeded the guidelines range applicable to his
conduct, and (2) the district court improperly considered civil default judgments
against him and failed to accord adequate weight to his heart condition. In light of
the financial hardship Schlisser caused his victims, the fact that he committed the
present offense either while on or immediately after completing supervised release
for a similar crime, and that the 60-month sentence Schlisser served for his prior
crime apparently did not deter him from committing the present offense, the sentence
imposed by the district court is not substantively unreasonable. Nor did the district
court err, as he asserts, by giving consideration to his prior civil judgments and not
considering his health problems. “The sentencing court . . . must be permitted to
consider any and all information that reasonably might bear on the proper sentence
for the particular defendant, given the crime committed,” Wasman v. United States,
468 U.S. 559, 563 (1984), and the district court explicitly considered Schlisser’s
medical condition, App’x 81–82.
The district court’s judgment is AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court