NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. R. 32
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted: May 25, 2010
Decided: February 9, 2011
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08‐1697
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff‐Appellee, for the Northern District of Illinois,
Eastern Division.
v.
MIHAEL HANN, a/k/a 06 CR 923
DANIEL NEAMTU,
Defendant‐Appellant. John W. Darrah, Judge.
ORDER
Mihael Hann a/k/a/ Daniel Neamtu1 was charged with four counts of wire fraud,
in violation of 18 U.S.C. §§ 1343 and 2; and two counts of receipt of stolen funds, in
1
The defendant concedes that his true name is Daniel Neamtu and that
Mihael Hann (also spelled “Mihail Hann” in the pleadings) is an alias he used as part of
the unlawful scheme for which he was convicted. Nevertheless, the government
indicted him using the Hann alias, his criminal judgment was issued using that name,
and his appeal was filed under that name as well. We will therefore refer to the
defendant as “Hann.”
No. 08-1697 Page 2
violation of 18 U.S.C. § 2315. Hann pled guilty to one count of wire fraud pursuant to a
plea agreement, and in exchange, the government moved to dismiss the remaining
counts.
Hann participated in a scheme to defraud internet users by offering items for sale
on auction sites such as eBay, and inducing would‐be buyers to send money to
purchase items that the schemers never intended to deliver. Hann used various aliases
to collect the buyers’ money from currency exchanges. All in all, the government
estimated that Hann scammed approximately seventy‐four victims out of $220,000.
Hann forwarded most of the proceeds to his co‐schemers, retaining approximately 15%
for himself.
Although the defendant and the government initially disagreed about the
amount of the foreseeable loss for which Hann could be held responsible, they
eventually agreed that the amount was more than $200,000 and less than $400,000, a
range that added twelve points to his base offense level. The court agreed with this
amount and calculated Hann’s total offense level as twenty‐two. Combined with a
criminal history category of I, the resultant sentencing guideline range was forty‐one to
fifty‐one months. The government argued for a sentence on the high end of the
guidelines range, and the court agreed:
I think a sentence that provides just punishment and adequate deterrence to you
and other people generally who are similarly inclined, and also protects the
public and that deters you from further conduct, is a sentence that must be
within the guideline range.
Sentencing Tr. at 13. The court then inexplicably sentenced Hann to a term of fifty‐
seven months’ imprisonment, six months more than the high end of the guidelines
range. The court gave no explanation or justification for the above‐guidelines sentence.
Our review of sentencing decisions is limited to whether they are reasonable,
applying the abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007).
We first must ensure that the district court committed no significant procedural error.
Gall, 552 U.S. at 51. Procedural errors include, among other things, failing to calculate
or incorrectly calculating the guidelines range, treating the guidelines as mandatory,
failing to consider the § 3553(a) factors, or failing to explain adequately the chosen
No. 08-1697 Page 3
sentence, including an explanation for any deviation from the guidelines range. Gall,
552 U.S. at 51. If the district court’s decision is procedurally sound, we then consider
the substantive reasonableness of the sentence using the abuse of discretion standard.
Gall, 552 U.S. at 51.
In this case, the government concedes that the district court committed a
procedural error in sentencing Hann. Although the court correctly calculated the
guidelines range and expressed a desire to sentence the defendant within that range, the
court sentenced Hann to a term six months greater than the high end of the guidelines
range. The government speculates that the error was inadvertent, that the court did not
intend to sentence Hann above the guidelines range. Alternatively, the government
concedes that if the court did intend to exceed the guidelines range, it erroneously
provided no explanation justifying that decision. We have consistently held that,
although a district court’s explanation need not be exhaustive, it must be adequate to
allow for meaningful appellate review. United States v. Scott, 555 F.3d 605, 608 (7th Cir.),
cert. denied, 130 S.Ct. 341 (2009); United States v. Carter, 538 F.3d 784, 789 (7th Cir. 2008);
United States v. Tockes, 530 F.3d 628, 632 (7th Cir. 2008). “If the sentence imposed is
outside the guidelines range, the district court must provide a justification that explains
and supports the magnitude of the variance.” Scott, 538 F.3d 608 (quoting Carter, 538
F.3d at 789).
In this instance, the court sentenced Hann outside the correctly calculated
guidelines range, but provided no explanation for the variance. Indeed, the court
expressed a preference for sentencing within the guidelines range. The district court
thus committed a procedural error. United States v. Bartlett, 567 F.3d 901, 910 (7th Cir.
2009) (“A sentence is procedurally unreasonable if the judge thinks it within the
guidelines range, but it isn’t[.]”). We therefore vacate the sentence and remand for
resentencing. Hann’s February 7, 2011 Motion to Sever the Appeal of Mihael Hann for
Purposes of Disposition is dismissed as moot.
VACATED AND REMANDED.