Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07‐cr‐862 Matthew F. Kennelly, Judge.
NON PRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
Submitted August 5, 2010*fn1
Before FRANK H. EASTERBROOK, Chief Judge DIANE P. WOOD, Circuit Judge JOHN DANIEL TINDER, Circuit Judge
Gabriel Toader and Raul Borlea were among several defendants charged in relation to a fraud scheme. Toader pleaded guilty to one count of wire fraud, see 18 U.S.C. §§ 1343 and 2, and was sentenced to 96 months' imprisonment. Borlea was tried by a jury who found him not guilty as to one count of wire fraud, see 18 U.S.C. §§ 1343 and 2, but guilty as to eight other counts of wire fraud and two counts of mail fraud, see 18 U.S.C. §§ 1341, 1343 and 2. He was sentenced to 45 months' imprisonment. They have appealed. Toader contends that the district court's findings were insufficient to hold him accountable for Gabriel Constantin's activities as relevant conduct under U.S.S.G. § 1B1.3. Borlea argues that the federal courts lack jurisdiction over him because he is a Moorish National Citizen. We turn first to Toader's appeal.
United States v. Salem, 597 F.3d 877 (7th Cir. 2010), addresses the appeals of three defendants charged in another case arising out of the same overall fraud scheme charged in this case and contains a general description of the fraud scheme. We refer the reader to that opinion for background information about the scheme. See id. at 879‐ 80.
In this case, the district court found that Toader participated in the scheme for more than two years. The district court described Toader's role as receiving communications from the foreign co‐schemers, collecting money from the domestic co‐schemers, transmitting or wiring fraud proceeds to the foreign co‐schemers, and in some instances, obtaining fake identification for others to use in the scheme. The district court also found that Toader was aware of transactions at Western Union, was responsible for monitoring the receipt of money and ensuring that the foreign schemers got what they were entitled to under the scheme, and involved family members and others in the scheme.
Toader challenges the sufficiency of the district court's findings to support its conclusion that he should be held accountable for the activities of co‐schemer Gabriel Constantin as relevant conduct under U.S.S.G. § 1B1.3. Toader argued that he should be held responsible for a loss less than $1,000,000 and for fewer than 250 victims. The government asserted that he should be held accountable for the jointly undertaken fraudulent conduct directly attributable to Constantin. The district court agreed with the government and found that the loss amount was greater than $1,000,000, increasing Toader's offense level by sixteen, see U.S.S.G. § 2B1.1(b)(1)(I), and that the number of victims was greater than 250, adding six more levels, see U.S.S.G. § 2B1.1(b)(2)(C). After adding five levels based on its findings that a substantial part of the offense occurred outside the United States, see U.S.S.G. § 2B1.1(b)(9)(B), and making various adjustments under U.S.S.G. §§ 3B1.1(b) and 3E1.1, the resulting offense level was thirty‐one. Given an offense level of thirty‐one and a criminal history category of I, Toader's guideline range was 108 to 135 months' imprisonment. The district court considered the sentencing factors, including sentencing disparities, and imposed a below‐guidelines sentence of 96 months.
We review the district court's factual findings for clear error. United States v. Alaka, 614 F.3d 368, 371 (7th Cir. 2010). A finding of fact is clearly erroneous "if, based upon the entire record, 'we are left with the definite and firm conviction that a mistake has been committed.'" Id. (quoting United States v. Carani, 492 F.3d 867, 875 (7th Cir. 2007)).
We addressed the need for a sentencing court to make specific findings on "key elements of the relevant conduct analysis" in Salem. We instructed that:
In applying U.S.S.G. § 1B1.3(a)(1)(B), the district court must make a preliminary determination of the scope of the criminal activity the defendant agreed to jointly undertake. Then the court must make a two‐part determination of whether the conduct of others was both in furtherance of that joint criminal activity and ...