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United States of America v. Raimon Doray Cerna and

April 10, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RAIMON DORAY CERNA AND MARIAN ALEXANDRU, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 923-John W. Darrah, Judge.

The opinion of the court was delivered by: Cudahy, Circuit Judge.

ARGUED JANUARY 17, 2012

Before EASTERBROOK, Chief Judge, and CUDAHY and HAMILTON, Circuit Judges.

This case involves defendants who received sentences within the sentencing guideline range but claim the court incorrectly calculated the guideline range.

Raimondoray Cerna and Marian Alexandru are Romanian nationals who resided in the United States illegally while participating in an international scheme to defraud online auction bidders. Individuals located primarily in Romania posed as United States-based sellers of goods on eBay and other online auction sites. A co-schemer would bid on a fabricated listing and "win" the auction. Another co-schemer would then contact a legitimate bidder, tell the bidder that the auction winner had backed out of the deal and then offer to sell the items to the bidder. Victims were instructed to send payment by wire transfer. When victims wired funds, co-schemers inside the United States, including Cerna and Alexandru, would pick up the payments using false identification. The domestic co-schemers would keep a percentage of the proceeds for themselves and send the remainder to the co-schemers in Romania. Of course, victims never received the goods for which they paid. This scheme operated for approximately two and half years, with more than 2,000 victims suffering losses totaling over $6,000,000.

Cerna oversaw and directed a number of co-schemers, including Alexandru, Gabriel Constantin, Ioan Moloman, Constantin Remus Lucan, Mihai Panaitescu, Mihail Eugen Hann, Stefan Laurentiu Dumitru, Adrian Florin Fechete, Aida Salem and Lucian Nanau, who operated in the Chicago area, Michigan and southern Florida. Cerna obtained counterfeit identification documents for this crew and relayed information between them and the co-schemers in Romania. Members of Cerna's crew kept 20% of the fraud proceeds, while Cerna was given a larger share than the other members.

Both Cerna and Alexandru have previously been deported based on their commission of criminal offenses. Cerna was convicted of fraud, for which he received a sentence reduction due to his cooperation with the government. Immediately after his deportation to Romania, however, Cerna illegally reentered the United States using a false passport that he never disclosed to the government during his earlier cooperation.

Cerna and Alexandru were both arrested in southern Florida in September 2005. Cerna was arrested on a federal warrant for illegal re-entry, and Alexandru for unauthorized possession of identification under Florida law, and later for illegal re-entry. Later, they were each charged with multiple counts of wire fraud. Both men pleaded guilty; Alexandru with a plea agreement and Cerna without.

At Cerna's sentencing, the district court read the presentence report and the government's version of it. The district court calculated Cerna's offense level as 21 based on: an uncontested loss amount of $1 million to $2.5 million dollars; more than 250 victims; a contested three-level role adjustment; and a three-point reduction for timely acceptance of responsibility. The three-level increase was based on the district court's finding that Cerna played a managerial role in the scheme. The district court determined that Cerna's criminal history category was V. The resulting guideline range was 168 to 210 months. After considering the sentencing factors in 18 U.S.C. § 3553(a), the court imposed a 180-month sentence.

Cerna appeals, arguing that the district court erred in its finding that he held a managerial role; that his sentence is unconstitutionally disparate from the sentences of his co-defendants; and that the court misap-plied the § 3553(a) factors.

Alexandru pleaded guilty to wire fraud pursuant to a plea agreement. The pre-sentence report for Alexandru calculated a loss amount of more than $1 million and detailed his criminal past. Alexandru contested the presentence report, focusing on the loss figure. The court found that if losses attributable to co-conspirator Salem were excluded, the figure would be somewhere between $400,000 and $1 million. The district court determined Alexandru's offense level to be 26 and his criminal history category to be II. The resulting guideline range was 70 to 87 months. If the district court had concluded that Salem's losses were properly included, the offense level would have been 28, and the resulting range 87 to 108 months. After discussing the § 3553 factors, the district court sentenced Alexandru to 87 months, noting that it would have sentenced Alexandru to 87 months regardless of the guideline range.

Alexandru appeals. Though he initially argued that the district court erred in determining the scope of his relevant conduct, he withdrew this argument in his reply brief.

Lastly, both defendants argue that their sentences should be reduced due to prosecutorial delay-both defendants have been in custody since September 2005 but were not indicted on these charges until 2007.

Alexandru waived this argument by failing to raise it at sentencing. Cerna forfeited this argument because he never presented it to the district court and he has not argued that the district ...


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