
    UNITED STATES of America, Appellee-Cross-Appellant, v. Julian TZOLOV, Defendant, Eric Butler, Defendant-Appellant-Cross-Appellee.
    
    Nos. 10-562-cr (Lead), 10-754 (XAP).
    United States Court of Appeals, Second Circuit.
    June 15, 2011.
    See also 642 F.3d 314.
    
      Steven F. Molo, Edward F. Daniels, New York, NY (Robert K. Kry, Washington, DC, on the brief), Molo Lamken LLP; Paul T. Weinstein, Emmet, Marvin & Martin, LLP, New York, NY, on the brief, for Appellant.
    John P. Nowak, (Daniel A. Spector & Jo Ann M. Navickas, on the brief), Assistant U.S. Attorney for the Eastern District of New York, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
    PRESENT: WILFRED FEINBERG, B.D. PARKER, RICHARD C. WESLEY, Circuit Judges.
    
      
       Docket Number 10-754 was closed by stipulation filed on September 24, 2010.
    
   SUMMARY ORDER

Appellant appeals from a judgment of conviction and sentence of the United States District Court for the Eastern District of New York (Weinstein, J.). Appellant objects, inter alia, to the introduction of certain evidence, as well as to the district court’s sentencing calculation. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. Appellant objects to the introduction of a recorded conversation between Notarnicola — one of Appellant’s customers and victims — and Appellant and his co-defendant. In this conversation, Notarnicola made detailed and repeated accusations of fraud against the defendants, at times reading directly from the language of the statutes under which defendants were eventually charged. The government offered the recording for a supposed non-hearsay purpose: accompanied by testimony from Appellant’s co-defendant, it was employed as evidence of the defendants’ evasive or untruthful responses to those accusations, constituting part of their overall fraudulent scheme.

We recognize that there are serious concerns over the propriety of the district court allowing this tape into evidence. The recording’s prejudicial effect very likely outweighed its probative value. However, we review evidentiary rulings for abuse of discretion. See, e.g., United States v. Lombardozzi, 491 F.3d 61, 78-79 (2d Cir.2007). Furthermore, those rulings are subject to harmless error analysis. See, e.g., United States v. Madori, 419 F.3d 159, 168 (2d Cir.2005). We conclude that any error resulting from the introduction was harmless, as the remaining evidence was more than sufficient to convict Appellant. Thus, we need not decide whether the district court abused its discretion. See Fed.R.Crim.P. 52(a).

Appellant also objects to the district court’s enhancement of his sentence, when the court determined that the loss inflicted was not readily calculable, and instead based its offense level calculation on Appellant’s gain, pursuant to U.S. Sentencing Guidelines Manual § 2B1.1 n. 3(B) (2010). That provision states that “[t]he court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined.”

We review a district court’s legal interpretation of the Sentencing Guidelines de novo, and review underlying factual findings for clear error. See, e.g., United States v. Canova, 412 F.3d 331, 351 (2d Cir.2005). Judge Weinstein found that Appellant inflicted pecuniary loss on his victims, but that the amount of loss could not reasonably be determined. Therefore, he appropriately used the gain realized by Appellant, in the form of commissions earned on the fraudulent sales, as an alternative measure of loss pursuant to the Guidelines provision quoted above. His factual findings present no clear error, and his interpretation of the Guidelines meets de novo review. The sentencing calculation below was not erroneous.

We have considered Appellant’s remaining contentions, and find them without merit.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. 
      
      . Appellant also argues that venue was not properly laid in the Eastern District of New ' York. We address this issue in a separate opinion in which we reverse Butler’s conviction for securities fraud and affirm his conviction as to the remaining challenged counts and remand for further proceedings.
     