United States v. Aslan

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 08-1486, 08-1678, 08-3789 & 08-4136

U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.

IGOR A SLAN, M IHAI P ANAITESCU,
S TEFAN D UMITRU and A DRIAN F ECHETE,

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.

A RGUED M AY 25, 2010—D ECIDED M AY 12, 2011

Before F LAUM, R OVNER, and W OOD , Circuit Judges.
R OVNER, Circuit Judge. Confidence games are as old as
a pig in a poke, but the internet has changed the scale of
the con to allow schemers to reach effortlessly across
oceans into the pockets of their trusting marks.1 The

1
A “pig in a poke” is “something bought or accepted without
prior inspection.” O XFORD E NGLISH D ICTIONARY (2010). The
(continued...)
2 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

defendants here ran a con for two and a half years
using the most efficient “poke” that technology has to
offer: eBay. The confidence men (and women) in this
scheme, many of them based in Romania, posed as
sellers of goods on eBay and other internet auction sites.
They accepted payment via Western Union, collected
by co-schemers at various locations in the Chicago area.
The co-schemers then kept a percentage of the money
for themselves and sent the balance to Romania. In
each instance, the poke was empty: no goods were deliv-
ered to the buyers. This had the beneficial effect for
the defendants of keeping costs down and profits
high. Most of the defendants pled guilty; one was con-
victed after a trial. The one who went to trial appeals
both his conviction and his sentence; the others appeal
their sentences.2

1
(...continued)
phrase refers to a confidence game originating in the Late
Middle Ages, where the buyer of a pig would take delivery
of the animal in a bag (also known as a poke), only to discover
later that the poke contained an inferior pig or, worse, a cat.
2
The appeal of Mihael Hann, Case No. 08-1697, was originally
consolidated with these appeals. We subsequently severed
Hann’s appeal and decided it in an Order. See United States
v. Hann, 2011 WL 463008 (7th Cir. February 9, 2011).
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 3

I.
The scheme was remarkably simple and uncommonly
successful: offer items for sale through internet auction
sites, collect payment, and then fail to deliver the goods.
The only complication was collecting the money without
being caught. Between November 2003 and August 2006,
the defendants and their associates managed to fleece
more than two thousand victims out of more than six
million dollars. The Romanian originators of this scam
(the government calls them the “Foreign Co-schemers”
and we will, too) posed as sellers on eBay and other
auction sites. They contacted buyers who had previously
bid on items but failed to complete the transactions
because they did not offer the highest bids. The Foreign
Co-schemers sent email to the disappointed bidders
extending “Second Chance Offers” to buy the items on
which they had recently bid. A typical email displayed
logos that made it appear as if eBay itself was extending
the offer on behalf of the seller. Each email contained
extensive information regarding protections eBay was
providing against fraud. The Foreign Co-schemers
were careful to mimic the language of legitimate eBay
correspondence. For example, they referenced the “Secu-
rity & Resolution Center,” which is the actual name of a
group at eBay that is designed to assist eBay users
in resolving transactional disputes and reporting fraudu-
lent activities. Because the Foreign Co-schemers be-
lieved that buyers would be reluctant to deal with
foreign sellers and would be wary of wiring money to
foreign countries, they employed collection agents (here-
after “U.S. Co-schemers”) in the United States, including
4 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

in the Chicago area. Once the victim agreed to make a
purchase, the Foreign Co-schemers would instruct the
victim to send payment by wire transfer to one of the
U.S. Co-schemers, typically through Western Union.
To lessen the risk of being detected by authorities, the
U.S. Co-schemers assumed false identities to collect the
wired payments at various currency exchanges. The
U.S. Co-schemers kept in continuous contact with their
Romanian counterparts in order to communicate the
constantly changing names the sellers should use when
luring victims, and in order to obtain the money transfer
control numbers issued by Western Union to the victims
making the purchases. Once the U.S. Co-schemers re-
ceived money transfer control numbers, they would use
matching, fake identification documents to claim the
funds from Western Union agents at various currency
exchanges. After deducting their percentage of the pro-
ceeds, they would then forward the remainder to the
Foreign Co-schemers. By returning a percentage to their
Romanian counterparts, the U.S. Co-schemers would
ensure that repeat business would be sent their way in
future transactions. Each of the defendants here played
a different role in the scheme for varying periods of
time. We will address the appeals of each defendant
separately.

A.
Igor Aslan was charged with three counts of wire
fraud, in violation of 18 U.S.C. §§ 1343 and 2. He pled
guilty to one count of wire fraud pursuant to a plea
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 5

agreement. In exchange for his plea, the government
agreed to dismiss the two remaining counts, to recom-
mend that Aslan be sentenced within the applicable
guidelines range, and to recommend that the court
adjust Aslan’s sentence to give him credit for time
served in state custody for a related conviction. Aslan
served ten months of a thirty-month sentence in state
custody for possession of a fraudulent identification
document, and subsequently spent several months in the
custody of immigration officials before he was charged
with the instant offense. The plea agreement did not
bind the court to any particular sentence. The parties
agreed that the applicable guidelines range was fifty-one
to sixty-three months.
Although the court initially indicated an inclination
to follow the government’s recommendations, Aslan
gave a lengthy elocution in which he said a number of
unfortunate things that caused the trial judge to rethink
his intention to credit Aslan for time served in state
custody. Among other things, Aslan characterized a 1992
state court conviction as a “set-up.” He declared, “I never
stole, I never steal and I will never steal.” After conceding
that he was guilty of the crime charged here, he said,
“But my responsibility in committing this crime, it’s
very limited.” R. 455, Tr. at 13-14. He compared himself
favorably to his co-schemers by noting that he “was
never involved in false advertising,” never recruited
others into the scheme, and did not know that another
group of collection agents was working in the Chicago
area as part of the same scheme. R. 455, Tr. at 14-15. He
also insisted that others in the scheme filled out the
6 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

paperwork to receive the money and that he simply
signed the forms and took the money from the currency
exchanges. He contended that he did not know “where
the money came from,” but that he simply collected it,
kept ten percent and immediately handed the remainder
over to others in the scheme. From his ten percent, he
complained, he was forced to pay the cost of the fake
id cards, leaving a “very small amount” for himself.
R. 455, Tr. at 16-17. He offered the court an example of
a collection for $2900, from which he was paid $290,
which was further reduced to $190 after he paid for the
fake id. “This is the truth,” Aslan insisted, apparently
unaware that the court might have more sympathy for
the victim who lost the entire $2900, not to mention
the seventy-four other victims whose money Aslan col-
lected at various currency exchanges. He told the court
that other participants were armed and were far more
involved than he, and yet some were never arrested.
He faulted the FBI for a “lack of professionalism” that
led to fewer arrests than would have been possible if
the Bureau had given more attention to certain informa-
tion. He repeated his claim that he had “never stolen
anything,” and asked “please to be considered for a small
punishment.” R. 455, Tr. at 20. He conceded that “the
victims were defrauded,” but complained that “my
amount, it’s extremely small. If one would calculate
after what my earnings were, it’s nothing federal here.”
R. 455, Tr. at 20.
Needless to say, the district court was not impressed
by Aslan’s attempt to divest himself of responsibility for
the tremendous harm he caused the victims of his crimes:
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 7

I listened very carefully to the statement you made
to me. There was no expression of contrition, no
expression of regret, no acknowledgment of the
harm that you have caused or the number of people
your conduct has caused harm to. You never really
admitted that you were wrong. Instead, you asked
me to focus on the relatively small amount of
money that you made out of this.
R. 455, Tr. at 23. The court then considered the Section
3553(a) factors and determined that a sentence at the
high end of the guidelines, sixty-three months, was ap-
propriate for Aslan. The court declined to give Aslan
credit for time served in state custody and instead stated,
“I intend that this sentence be served as I pronounce
it.” R. 455, Tr. at 23. The court also ordered restitution
in the amount of $187,982.48, and a three-year period
of supervised release.
Aslan’s lawyer moved to withdraw under Anders v.
California, 386 U.S. 738 (1967), contending that Aslan
had no non-frivolous issue to raise on appeal. Aslan
responded to our invitation to reply to his attorney’s
motion. See Circuit Rule 51(b). We confine our review of
the record to the potential issues raised in the attorney’s
facially-adequate brief and Aslan’s Rule 51(b) response.
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.
2002); United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
Aslan’s attorney presents two potential issues for
review: whether the district court abused its discretion
in denying Aslan credit for the time he served in state
custody on a conviction for conduct related to the
8 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

federal charges in this case, and whether the court
abused its discretion in denying Aslan credit for the time
he served in immigration custody. Our review of sen-
tencing decisions is limited to whether they are rea-
sonable, 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 in-
correctly calculating the guidelines range, treating the
guidelines as mandatory, failing to consider the § 3553(a)
factors, or failing to explain adequately the chosen sen-
tence, 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.
We review the district court’s interpretation of the sen-
tencing guidelines de novo. United States v. Veazey, 491
F.3d 700, 706 (7th Cir. 2007); United States v. Chamness,
435 F.3d 724, 726 (7th Cir. 2006). Sentences that are
within the properly calculated guidelines range are
entitled to a rebuttable presumption of reasonableness.
Rita v. United States, 551 U.S. 338, 341-49 (2007); Veazey,
491 F.3d at 706; United States v. Rodriguez-Alvarez, 425
F.3d 1041, 1045 (7th Cir. 2005); United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005). Counsel correctly notes
that the plea agreement did not hold the court to any
particular sentence, and this sentence was within the
guidelines range. It is therefore entitled to a presump-
tion of reasonableness.
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 9

Aslan’s state court sentence was imposed after he
pled guilty to possession of a fraudulent identification
document. Because the conduct for which the sentence
was imposed was part of the instant offense, Aslan
accrued no criminal history points for that conviction.
R. 179-1, Plea Agreement, ¶ 6(g)(i). Counsel correctly
notes that Aslan is not entitled to an adjustment under
the federal statute that determines when an inmate is
entitled to credit for prior custody:
Credit for prior custody.—A defendant shall be given
credit toward the service of a term of imprisonment
for any time he has spent in official detention prior
to the date the sentence commences—
(1) as a result of the offense for which the sentence
was imposed; or
(2) as a result of any other charge for which the
defendant was arrested after the commission of the
offense for which the sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585(b). Aslan’s time in state custody was not
as a result of the offense for which the federal sentence
was imposed. Rather, it was for a separate state of-
fense. Indeed, no federal charges were even filed until
after Aslan was released from state custody. All of the
time that Aslan spent in state custody was credited
toward his state sentence and he is therefore ineligible
for any Section 3585 credit.
Moreover, under Section 3584, “[m]ultiple terms of
imprisonment imposed at different times run consecu-
10 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

tively unless the court orders that the terms are to run
concurrently.” In determining whether to order the terms
to run concurrently or consecutively, the court must
consider the factors set forth in Section 3553(a). See 18
U.S.C. § 3584(b). The court thoroughly considered the
factors set forth in Section 3553(a), noting that Aslan
failed to express any remorse for his crime, and that a
sentence at the high end of the guidelines was neces-
sary to deter others and also to protect the public from
Aslan’s continued crimes. The court noted that Aslan’s
history demonstrated that there was no chance he could
be rehabilitated, and that if he were free to do so, he
would continue to commit the same kinds of crimes.
Based on Aslan’s criminal history, his conduct in the
current offense and his complete failure to take responsi-
bility for the harm he caused, the court characterized
him as “truly a dangerous person.” There was no abuse
of discretion in this assessment.
Counsel next considered whether the court erred in
not crediting Aslan for the time he served in the custody
of immigration authorities after he was released from
custody in the state offense. Aslan was in custody
for approximately four months on an outstanding de-
portation warrant before he was arrested for the instant
offense. Counsel correctly notes that Aslan was not
under a federal sentence during the time he was in ad-
ministrative custody. For that reason, he is not entitled
to any relief under Section 3585(b). The court certainly
had the discretion to take the period of immigration
detention into account in setting Aslan’s sentence, but
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 11

did not abuse its discretion in determining that Aslan
must serve the sentence imposed in full.
Aslan does not raise any additional issues in his
Circuit Rule 51(b) response. In that response, he simply
complains that his attorney promised to get him out of
jail in exchange for $10,000 and a guilty plea. He seeks
appointment of new counsel to assist him in his appeal.
Of course, in his plea agreement, Aslan contradicted
the version of events he would now have us believe. In
his plea agreement, he assured the court that he was
pleading guilty because he was in fact guilty. He also
confirmed that “no threats, promises, or representa-
tions have been made, nor agreements reached, other
that those set forth in this [plea] Agreement, to cause
defendant to plead guilty.” R. 179-1, ¶¶ 5, 19. The
plea agreement also specified the correctly calculated
guidelines range and the statutory maximum sentence.
His contradictory claim now that his attorney promised
to get him out of jail for $10,000 and a guilty plea
does not entitle Aslan to the new counsel that he re-
quests. Because he has no non-frivolous issues for
appeal, we therefore grant his attorney’s motion to with-
draw and dismiss his appeal.

B.
Mihai Panaitescu was charged with one count of wire
fraud in violation of 18 U.S.C. §§ 1343 and 2. He pled
guilty to that count pursuant to a plea agreement. Like
Aslan, Panaitescu was one of the U.S. Co-schemers who
assumed a series of false identities to collect payments
12 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

at currency exchanges, keeping some for himself and
forwarding the remainder to the Foreign Co-schemers.
Panaitescu had previously pled guilty to a different
charge of wire fraud and was serving a nineteen-
month sentence for that conviction when he was
indicted in the instant case. The government refers to
that prior matter as the Moloman case, nicknamed
for one of Panaitescu’s co-defefendants in that case.
While still in federal custody on the Moloman convic-
tion, Panaitescu was arrested and taken before a federal
magistrate for an initial appearance on the new charges.
He waived his right to a detention hearing and the
court granted the government’s motion to detain
Panaitescu pending trial on the new charges. Panaitescu
pled guilty to the new charges on June 6, 2007 and was
sentenced on March 13, 2008. At the time of his sen-
tencing, Panaitescu had served more than twenty-seven
months in prison. Thus, he had fully served his prior
nineteen-month sentence in the Moloman case before
he was sentenced on the wire fraud count at issue here.
He remained in prison at the conclusion of that sen-
tence because, as we noted, the court had ordered him
detained pending the resolution of the new charges.
Panaitescu now complains that he never received official
notification that his sentence in the Moloman case had
been discharged. Without that official notification, he
argues that his prior sentence was not discharged. And
because that sentence had not been discharged, he con-
tends, the court could have ordered that his sentence in
the instant case run concurrently with the sentence in
the Moloman case. Prior to his sentencing in the instant
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 13

case, the government requested that the Bureau of
Prisons (“BOP”) provide documentation regarding the
status of the Moloman sentence. The BOP then produced
a document that listed an expected “release” date of
May 31, 2007. In light of that document, the district
court refused to order that the instant sentence run con-
currently with the Moloman sentence because the
Moloman sentence had been fully discharged prior to
sentencing in this case. Panaitescu now complains that
the court erred in relying on this unofficial document
that did not purport to discharge his sentence. Without
the official discharge, he contends he was entitled to
consideration of his request for concurrent sentencing.
We need not reach the substance of Panaitescu’s novel
and dubious claim regarding whether his sentence could
run concurrently with the prior sentence in the absence
of an official “discharge” document. Panaitescu’s plea
agreement contained a broad waiver of his right to
appeal his sentence:
Defendant is aware that Title 18, United States Code,
Section 3742 affords a defendant the right to appeal
a sentence. In exchange for the concessions made by
the government in this plea agreement, defendant
knowingly waives the right to appeal any sentence
within the maximum provided in the statute of con-
viction, or the manner in which that sentence was
determined. The defendant also waives his right
to challenge the sentence in any collateral attack,
including but not limited to a motion brought under
Title 28, United States Code, Section 2255. The
14 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

waiver in this paragraph does not apply to a claim of
involuntariness, or ineffective assistance of counsel
which relates directly to this waiver or its negotiation.
R. 169, ¶ 12.
Panaitescu contends that the issue he now appeals is
outside the scope of the waiver in his plea agreement. He
claims he is not appealing the length of his sentence or
the manner in which it was calculated. Rather, he is
challenging the court’s ruling on the status of his prior
sentence, which in turn caused the court to reject his
request to serve the instant sentence concurrently with
his prior sentence. A decision by the court to impose a
consecutive sentence easily comes within the language
of the waiver, which prevents Panaitescu from chal-
lenging a sentence within the statutory maximum or the
manner in which that sentence was determined. The
statutory maximum for wire fraud is a twenty-year term
of imprisonment. 18 U.S.C. § 1343. The court sentenced
Panaitescu to a term of fifty-eight months, well within
the statutory maximum. Under 18 U.S.C. § 3584 and
Section 5G1.3(c) of the Sentencing Guidelines, a district
court may run a new prison sentence concurrently, par-
tially concurrently, or consecutively to an undischarged
term of imprisonment based on certain considerations.
That determination necessarily involves “the manner
in which that sentence is determined,” which is also
covered by Panaitescu’s appeal waiver. We will en-
force an appellate waiver if its terms are express and
unambiguous, and the record shows that the defendant
knowingly and voluntarily entered into the agreement.
United States v. Chapa, 602 F.3d 865, 868 (7th Cir. 2010).
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 15

Those conditions are met here. We therefore dismiss
Panaitescu’s appeal.

C.
Stefan Dumitru 3 was charged with three counts of
wire fraud in violation of 18 U.S.C. §§ 1343 and 2, and
one count of receipt of stolen funds that had been trans-
ported interstate, in violation of 18 U.S.C. § 2315.
Dumitru pled guilty to one count of wire fraud pursuant
to a plea agreement. Dumitru’s role in the scheme was
similar to that of Aslan and Panaitescu. Dumitru
assumed a series of false identities to collect payments
at currency exchanges, keeping a cut for himself and
forwarding the rest to the Foreign Co-schemers. No
later than March 2005, Dumitru learned about
the existence and nature of the internet fraud scheme
from co-defendant Raimondoray Cerna. 4 Between
March and December of 2005, Dumitru collected al-
most $100,000 from thirty-three different victims.

3
Dumitru’s real name is Petru Hanea. He was indicted under
the name “Stefan Laurentiu Dumitru,” an alias he assumed
while living in the United States. The indictment, plea agree-
ment and judgment all refer to him as Dumitru and so we
will use that name as well.
4
Cerna’s case is not part of this appeal. The scheme involved
at least twenty defendants, and their cases have proceeded
through the district court on different time lines. We will
mention some of these other defendants when it is neces-
sary to explain the issues relevant to the defendants in the
instant appeal.
16 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

At the time of the plea agreement, the government
posited that the amount of loss involved in the jointly
undertaken criminal activity that was foreseeable
to Dumitru was greater than $400,000 but less than
$1,000,000. Dumitru would concede only that the
amount of loss foreseeable to him was greater than
$70,000 but less than $120,000. The government’s cal-
culations called for a fourteen-level increase in the
base offense level, and Dumitru’s concession warranted
only an eight-level increase. Similarly, the government
asked for an additional six-level increase in the offense
level because the offense involved more than 250 vic-
tims. Dumitru claimed that only a two-level increase was
appropriate, pegging the number of victims between
ten and fifty. In the plea agreement, the parties reserved
their right to argue these positions at sentencing.
The government urged the court to adopt the recom-
mendation of the Presentence Investigation Report
(“PSR”). The PSR recommended that the court find that
the amount of foreseeable loss was more than $400,000
but less than $1,000,000, and that the number of victims
was greater than 250. The evidence presented in sup-
port of that recommendation included information that
Dumitru received fraudulent Western Union transactions
from both leaders of the scheme, Cerna and Adrian
Fechete.5 Dumitru, who recruited Hann into the scheme,
used the same currency exchanges as Marian Alexandru,

5
We address Fechete’s appeal in Section D, below.
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 17

Fechete and Hann. 6 He also shared information with
several of his co-defendants on which currency ex-
changes were favorable places to collect the funds. In-
deed, many of the defendants repeatedly used the same
currency exchanges. For example, Dumitru and six of his
co-schemers all collected fraud proceeds at the Foster
Currency Exchange in Chicago, totaling thirty-one trans-
actions at that single exchange. Dumitru and his co-
schemers frequently received fraud proceeds from the
same currency exchange on the same day. He some-
times shared rides to currency exchanges with Hann
and Fechete. Dumitru used the same email addresses as
his co-schemers to receive Western Union transaction
information from the Foreign Co-schemers. Similarly, he
deposited fraud proceeds into bank accounts which were
used by Hann, Alexandru and others for that same pur-
pose. He obtained false identification documents from
the same source as Hann, and these documents bore
similarities to those used by Cerna and Alexandru. Cell
phone information also tied Dumitru to his co-schemers.
The district court found that Dumitru could reason-
ably be held to foresee the conduct of several other co-
schemers, including co-defendants Cerna, Ioan Moloman,
Panaitescu, Hann, Aida Salem, Fechete and Alexandru.7
The court noted (and Dumitru’s counsel agreed) that the
foreseeable conduct of Hann and Moloman alone would

6
Alexandru’s case is not part of this appeal.
7
The cases of Moloman and Salem are not part of the
instant appeal.
18 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

bring the number of victims to 255 and the loss to an
amount between $400,000 and $1,000,000. In concluding
that the conduct of these co-defendants was foreseeable
to Dumitru, the court considered the government’s evi-
dence regarding the similarity of the modus operandi,
coordination among co-schemers, facilitation of fraudu-
lent acts committed by others, knowledge of the scope
of the scheme, the length and degree of the participants’
involvement in the scheme, and the pooling of resources
and benefits. The court credited this evidence as
being sufficient to support a finding that Dumitru could
be held responsible for more than 250 victims and
losses between $400,000 and $1,000,000.
On appeal, Dumitru posits that he should have been
held responsible only for those transactions in which he
personally was involved. He faults the district court for
applying United States v. Adeniji, 221 F.3d 1020 (7th Cir.
2000) in determining how to calculate the loss to be
attributed to a defendant under Section 1B1.3 of the
Sentencing Guidelines. He urges us instead to adopt the
Second Circuit’s approach in United States v. Studley, 47
F.3d 569 (2d Cir. 1995). He concedes that we rejected
Studley in United States v. Boatner, 99 F.3d 831 (7th Cir.
1996), but asks that we reconsider the issue because he
believes the Second Circuit’s approach is more precise
and a better interpretation of the Sentencing Guidelines.
Using that approach, he contends that the evidence was
insufficient to demonstrate that he could reasonably
foresee that the conduct of his co-schemers would result
in losses in excess of $400,000 to more than 250 victims.
He characterizes his participation as limited to picking
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 19

up proceeds and complains that there was no evi-
dence that he agreed to participate in the scheme as
a whole. He claims he did not know the magnitude of
his co-defendants’ participation, that he had no role in
luring the victims, driving others around, organizing
money pick-ups, or coordinating the activities of others.
In calculating a defendant’s offense level under the
Sentencing Guidelines, a court must determine the base
offense level and then apply the guidelines for specific
offense characteristics. United States v. Salem, 597 F.3d
877, 884 (7th Cir. 2010). “Specific offense characteristics
depend not only on the offense of conviction but also
on relevant conduct.” Salem, 597 F.3d at 884. Section 1B1.3
of the sentencing guidelines addresses, among other
things, relevant conduct in the case of jointly undertaken
criminal activity. That Section provides that the base
offense level is determined on the basis of:
all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or will-
fully caused by the defendant; and . . . in the case of
a jointly undertaken criminal activity (a criminal plan,
scheme, endeavor, or enterprise undertaken by the
defendant in concert with others, whether or not
charged as a conspiracy), all reasonably foreseeable
acts and omissions of others in furtherance of the
jointly undertaken criminal activity[.]
U.S.S.G. § 1B1.3(a)(1). A court assessing a defendant’s
liability under the relevant conduct provision must
engage in a two-pronged analysis. With respect to the
loss amount that can be attributed to a defendant, the
20 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

court must determine (1) whether the acts resulting in
the loss were in furtherance of jointly undertaken
criminal activity; and (2) whether those acts were rea-
sonably foreseeable to the defendant in connection with
that criminal activity. Salem, 597 F.3d at 884-86; Adeniji,
221 F.3d at 1027.
Dumitru characterizes his objection to the district
court’s findings as to both the scope of activity for which
he was held accountable and to the foreseeability of the
conduct of others. The government notes that in the
district court, Dumitru objected only to the foreseeability
of the conduct of others in the scheme. The government
contends that by limiting his objection to the issue of
reasonable foreseeability, Dumitru waived his objection
to a finding that he engaged in certain joint criminal
activity with his co-schemers. We have reviewed
Dumitru’s “Defendant’s Sentencing Memorandum”
(“Sentencing Memorandum”) (R. 694) and the transcript
of his sentencing hearing, and conclude that the gov-
ernment is correct. In his Sentencing Memorandum,
Dumitru describes his objection as to the foreseeability of
the loss only. He never objected to the characterization
of the scope of jointly undertaken criminal activity con-
tained in the PSR or in the government’s version of the
crime. The government clarified in its “Position Paper
for Sentencing of Defendant Stefan Laurentiu Dumitru”
(R. 696) (“Position Paper”), that Dumitru did not
object to the scope of the jointly undertaken criminal
activity:
Defendant does not argue that [sic] in his position
paper that the government failed to prove that he
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 21

engaged in joint criminal activity with his co-
schemers; such a position would certainly be
frivolous under the circumstances.
R. 696, Position Paper, at 7-8 (emphasis in original).
Rather, the government characterized Dumitru’s objec-
tion as being solely to the foreseeability of the loss
caused by his co-schemers’ conduct. Dumitru did not
object to this characterization. In fact, when the court
asked at sentencing whether Dumitru’s principal theory
was that Dumitru was not responsible for any con-
duct other than the thirty-three victims he personally
defrauded out of $99,000 because no other conduct was
foreseeable to him, his counsel replied, “That’s the princi-
pal theory, Judge, and we rest on that.” Given this se-
quence of exchanges, we conclude that Dumitru waived
any objection to the scope of jointly undertaken criminal
activity and limited his objection to foreseeability only.
“Waiver is the intentional abandonment of a known
right, and precludes appellate review.” United States v.
Haskins, 511 F.3d 688, 693 (7th Cir. 2007). Dumitru knew
he could object to the scope of jointly undertaken crim-
inal activity and did not. He likely declined to contest
the scope of the jointly undertaken criminal activity in
order to preserve the sentencing reduction he enjoyed
for acceptance of responsibility. Salem, 597 F.3d at 890.
We will therefore review only whether the court erred
in finding that loss greater than $400,000 to more than
250 victims was reasonably foreseeable to Dumitru.
We review the court’s foreseeability finding for clear
error. United States v. Hernandez, 325 F.3d 811, 817 (7th
22 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

Cir. 2003). Foreseeability is not equivalent to actual knowl-
edge. Hernandez, 325 F.3d at 817. A defendant need not
know of a co-schemer’s actions for those actions rea-
sonably to be foreseeable to the defendant. We see no
error in the district court’s conclusion that losses of
this magnitude to this many victims were foreseeable
to Dumitru. Having recruited Hann into the scheme,
Dumitru also shared with several of his co-schemers
access to fake identification documents, information
regarding which currency exchanges were favorable to
the scheme, rides to the currency exchanges, and bank
accounts through which fraudulent funds were chan-
neled. That was more than enough to find that the
losses caused by the jointly undertaken criminal activity
of his co-schemers were reasonably foreseeable to him.8
Finding no error in the court’s findings, we affirm
Dumitru’s sentence.

8
Because Dumitru limited his objections to foreseeability, the
Second Circuit’s approach in Studley is irrelevant to our
analysis. Studley aims to define the factors a court should
consider in determining the scope of jointly undertaken
criminal activity. Studley, 47 F.3d at 574-75. Dumitru did not
contest the government’s characterization of the scope of the
jointly undertaken criminal activity. He complained only
about the court’s finding that he could reasonably foresee
that the criminal conduct of his co-schemers would cause
more than $400,000 in losses to more than 250 victims.
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 23

D.
That brings us to the appeal of Adrian Fechete, the only
defendant in these consolidated appeals to go to trial.
Fechete was charged with six counts of wire fraud in
violation of 18 U.S.C. § 1343, three counts of receiving
stolen property that had been transported interstate
in violation of 18 U.S.C. § 2315, one count of conspiracy
to commit money laundering in violation of 18 U.S.C.
§ 1956(h), and one count of aggravated identity theft in
violation of 18 U.S.C. § 1028A. A jury found Fechete
guilty of all charges, and the district court subsequently
sentenced him to 324 months of imprisonment, by far
the lengthiest sentence for any of the co-schemers in
these appeals.
Like the other defendants, Fechete assumed false identi-
ties to collect payments sent by unsuspecting eBay shop-
pers via Western Union. Fechete participated in the
scheme from approximately November 2004 to March
2006. He personally collected more than $180,000
from approximately seventy victims. Like his cohorts,
he forwarded a large percentage of this money to the
Foreign Co-schemers, generally using Western Union
and Moneygram wire transfers. Fechete lived with
Cerna, another leader of the scheme, during the early
months of his participation. Cerna managed a crew
of collection agents including Fechete, Moloman and
Salem. Fechete shared rides to currency exchanges
with Panaitescu and Moloman, and shared information
with his co-schemers about which currency exchanges
were favorable. After Fechete had a falling-out with
24 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

Cerna, he moved out and formed his own crew of collec-
tion agents, recruiting new members to the scheme.
Fechete managed the activities of Denis Busta, Gary
Schneider and Jessie Vega as well as the individuals
Schneider and Vega recruited. At Fechete’s direc-
tion, Schneider collected victims’ funds from currency
exchanges and transmitted fraud proceeds to the Foreign
Co-schemers. Fechete sometimes paid Schneider to trans-
mit Fechete’s fraud proceeds to Romania because
Fechete had already sent too much money in his own
name and wished to avoid calling attention to himself.
Fechete also kept a cut of Schneider’s collections
for himself before the remainder was wired to the
Foreign Co-schemers in Romania.
When Fechete felt that Schneider’s collection activities
might be reaching a level that would draw attention
from law enforcement, he directed Schneider to recruit
additional collection agents who would be willing to
pick up money from Western Union in their own names
in exchange for cash payments. Schneider recruited
thirteen friends and acquaintances to receive wired
fraud proceeds from currency exchanges. Schneider
provided the names of his recruits to Fechete via text
message, and Fechete then transmitted those names to
the Foreign Co-schemers for use in soliciting victims
on eBay and other auction sites. Schneider’s recruits
collected approximately $365,000 from eighty-four
victims in a three-month period in 2005. From these fraud
proceeds, the recruits were paid a nominal sum, and
Fechete and Schneider each took a cut before trans-
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 25

mitting the rest to Romania. Fechete was careful to use
Schneider’s recruits to transmit fraud proceeds to
Romania to avoid the attention of the Internal Revenue
Service and other government agencies.
Fechete similarly directed Vega to recruit others who
would be willing to use their own names to collect vic-
tims’ money from currency exchanges. Vega recruited
approximately nine friends, who each used their own
names to pick up fraud proceeds for periods of one or
two weeks. As with Schneider, Vega provided names via
text messages to Fechete, who then transmitted those
names to the Foreign Co-schemers. The Foreign Co-schem-
ers lured the victims using those names and induced
the victims to wire money to Vega’s recruits. The recruits
were paid a nominal amount to collect the proceeds at
currency exchanges and Vega kept a twenty-percent cut
before turning over the remainder to Fechete. In a six-
month period in 2005, Vega and his recruits collected
approximately $343,000 from seventy-nine victims.
When Fechete was arrested, law enforcement agents
searched his apartment and recovered, among other
things, a number of counterfeit identification docu-
ments and a loaded 9mm Glock semi-automatic pistol,
which was hidden in a hole beneath the false bottom
of a bathroom cabinet. Law enforcement also recovered
an envelope addressed to Moloman and documents
in the name of an alias used by co-schemer Salem.
Fechete’s cell phone contained contact information for
Schneider and Vega. The phone was registered to
Moloman’s address and call records documented
26 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

frequent calls to co-schemers Cerna, Moloman and
Constantin Lucan.9
After a jury convicted Fechete on all charges, the
court held a sentencing hearing where Fechete ob-
jected to the amount of loss and number of victims at-
tributed to him as relevant conduct. He also argued
against a two-level increase for possession of a dangerous
weapon in connection with the fraud scheme. The court
found that Fechete alone was directly responsible
for defrauding sixty-four victims in amounts totaling
$186,000. The court also found that Fechete recruited,
trained and supervised Schneider and Vega and that their
conduct was “particularly foreseeable” to him. Schneider
and Vega together collected $708,000 from 163 victims.
The court calculated that Fechete was responsible for
stealing $927,000 from 238 victims counting the losses
and victims for Fechete, Schneider and Vega alone. The
court also found that the conduct of Moloman, Panaitescu
and Salem were also foreseeable to Fechete, based on
their parallel use of telephones and phone numbers,
extensive phone calls among them, and the use of a
common residence. The court therefore concluded that
Fechete would be held liable for losses exceeding
$1,000,000 to more than 250 victims. The court also con-
cluded that the Glock pistol recovered from Fechete’s
home was used in connection with the offense.
On appeal, Fechete challenges his convictions for
money laundering and aggravated identity theft. He

9
Lucan’s case is not part of this appeal.
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 27

also contends that the court erred in sentencing him
when it failed to hold the government to its burden of
proving relevant conduct by a preponderance of the
evidence and when it failed to make requisite findings
regarding reasonably foreseeable losses and victims.
Finally, he challenges the enhancement for possession
of a firearm in connection with the offense.

1.
Count Eighty-Seven of the Superseding Indictment
(“Indictment”) charged Fechete with conspiring to
commit money laundering in violation of 18 U.S.C. §§ 2,
1956(a)(2)(B)(i) and (h). R. 196. Specifically, the Indict-
ment charged that Fechete, Cerna, Salem, Moloman,
Alexandru, Panaitescu, Schneider and others:
conspired to transmit and transfer funds from a
place in the United States to a place outside the
United States knowing that the funds involved in
the transmission and transfer represented the pro-
ceeds of some form of unlawful activity, namely,
violations of Title 18, United States Code, Section 1343
(wire fraud) and violations of Title 18, United States
Code, Section 2315 (receipt of stolen property trans-
mitted interstate), knowing that the transmission
and transfer was designed, in whole and in part, to
conceal and disguise the nature, location, source,
ownership and control of the proceeds of such speci-
fied unlawful activity, in violation of Title 18, United
States Code Section 1956(a)(2)(B)(i).
28 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

R. 196, at 18-19. The Indictment specified (and the gov-
ernment proved at trial) that Fechete transmitted the
Foreign Co-schemers’ share of the wire fraud proceeds to
Romania after taking his own cut and also after paying
any U.S. Co-schemers who had participated in a
particular act of wire fraud.1 0 Fechete argues for the first
time on appeal that the evidence was insufficient to
support his conviction for money laundering because
the government failed to establish that the money trans-
ferred to Romania was “proceeds” of wire fraud as that
term has been defined by the Supreme Court and by this
court.
We will overturn a jury verdict for insufficiency of the
evidence only if, after viewing the evidence in the light
most favorable to the government, the record is devoid
of evidence from which a reasonable jury could find guilt
beyond a reasonable doubt. United States v. Vaughn,
585 F.3d 1024, 1028 (7th Cir. 2009), cert. denied, 130 S. Ct.
3385 (2010); United States v. Boisture, 563 F.3d 295, 298
(7th Cir. 2009); United States v. Groves, 470 F.3d 311, 323-24
(7th Cir. 2006). Because Fechete did not challenge

10
Although the Indictment specifies that the proceeds of both
the wire fraud counts and the stolen property counts were
laundered through transmissions to Romania, both the gov-
ernment and Fechete focus exclusively on the wire fraud
proceeds in their briefs. For the purposes of this case, there is
no reason to treat the proceeds of these two crimes differ-
ently. For the sake of simplicity, we will refer only to the
wire fraud proceeds even though our reasoning applies
with equal force to the stolen property proceeds.
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 29

his conviction for money laundering in the district court
and did not object to the jury instructions on this count,
we review the conviction for plain error. Fed. R. Crim.
P. 52; United States v. Olano, 507 U.S. 725, 731 (1993); United
States v. Ali, 619 F.3d 713, 718-19 (7th Cir. 2010), cert. denied,
131 S. Ct. 965 (2011); United States v. Dokich, 614 F.3d
314, 318 (7th Cir. 2010); United States v. Rodgers, 610
F.3d 975, 978 (7th Cir. 2010). In order to reverse for plain
error, we must find (1) error (2) that is plain, and (3) that
affects the defendant’s substantial rights. Olano, 507 U.S.
at 732; Ali, 619 F.3d at 719; Dokich, 614 F.3d at 318;
Rodgers, 610 F.3d at 978. An error is plain if it is clear or
obvious. Olano, 507 U.S. at 734. An error “affects the
defendant’s substantial rights” when it is prejudicial, that
is, when it has affected the outcome of the district court
proceedings. Olano, 507 U.S. at 734. Finally, we note that
the correction of a forfeited error under Rule 52(b) is
permissive, not mandatory. Fed. R. Crim. P. 52; Olano,
507 U.S. at 735. A court of appeals “should correct a
plain forfeited error affecting substantial rights if the
error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’ ” Olano, 507 U.S. at
736 (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)).
To convict Fechete on the money laundering count,
the government was required to prove that Fechete en-
gaged in a conspiracy (1) in order to transmit funds
from the United States to Romania; (2) knowing that
the funds represented the proceeds of unlawful activity
(in this instance, wire fraud and receipt of stolen prop-
erty); and (3) knowing that the transmission was
30 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

designed in whole or in part to conceal or disguise the
nature, the location, the source, or the control of the
proceeds of specified unlawful activity. 18 U.S.C.
§ 1956(a)(2)(B)(i); Regalado Cuellar v. United States, 128
S. Ct. 1994, 2002 (2008). The only part of his conviction
that Fechete challenges is whether the government pro-
vided sufficient evidence that the funds he transmitted
to Romania represented the “proceeds” of unlawful
activity. He bases this argument on the Supreme Court’s
opinion in United States v. Santos, 128 S. Ct. 2020 (2008)
(hereafter “Santos II”), which was issued after Fechete’s
trial and conviction, and on our opinion in United States
v. Scialabba, 282 F.3d 475 (7th Cir. 2002). Both opinions
addressed the meaning of the term “proceeds” in the
money laundering statute.
Under Fechete’s reading of these cases, the term “pro-
ceeds” in the federal money laundering statute means
the net profits of criminal activity and not the gross
receipts of that activity. Fechete argues that both this
court and the Supreme Court limited the meaning of the
term “proceeds” under the rule of lenity, which requires
that ambiguous criminal laws be interpreted in favor
of defendants. According to Fechete, both courts also
limited the meaning of “proceeds” to net profits because
interpreting the term to mean gross receipts would
result in a “merger problem,” where nearly every
predicate offense for money laundering would also con-
stitute money laundering. That is, the same conduct
that led to a conviction for the predicate offense would
also lead to a conviction for money laundering. Because
the government concedes that it did not prove at trial
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 31

that the money Fechete wired to Romania represented the
net profits of the internet fraud scheme, Fechete con-
tends that the conviction should be reversed. The gov-
ernment contends that both Scialabba and Santos II ad-
dressed only promotional money laundering and that
the same reasoning does not apply to concealment
money laundering, the prong of the statute under which
Fechete was convicted. According to the government, it
is not clear if there was error because there is no
merger problem with concealment money laundering
and the predicate offense of wire fraud. Because the
error (if there was one) was not clear, the government
contends that the conviction should stand. We note that
the jury here was not instructed as to the meaning of
proceeds. We begin by analyzing the reasoning of
Scialabba and both Santos cases, and, along the way, we
will discuss the differences between promotional money
laundering and concealment money laundering, the
latter being at issue here.
In Scialabba, the defendants ran an illegal gambling
operation using video poker machines in bars, taverns and
restaurants (we will use “bars” collectively to refer to
the businesses that operated the machines). Scialabba,
282 F.3d at 475. Cechini owned the business that
provided the machines to bars, and Scialabba was his
assistant. Patrons dropped coins into the machines and
earned on-screen credits if they won. With the credits,
they could continue to play additional games (a lawful
use of the machines) or they could receive a cash pay-
out (an unlawful use). Many of the bars that operated
the poker machines redeemed the credits for cash.
32 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

When the defendants collected the contents of the ma-
chines’ coin boxes, they split the money with the bars’
owners. Some of the money was used to cover the pay-
ments to players who had redeemed their credits for
cash; some was used to compensate the bar owners for
their participation in the scheme; and the rest was
retained by the defendants. Some of that money retained
by the defendants was undoubtedly profit and some
was used to purchase and maintain the machines. 282
F.3d at 475-76.
The defendants were convicted of running an
unlawful gambling business, filing false tax returns,
conspiring to defeat tax collection from the bars’ owners,
and money laundering. They appealed only the money
laundering convictions; those counts substantially in-
creased their prison terms. Both Cechini and Scialabba
were charged under § 1956(a)(1) on the theory that they
violated the statute when they handed some of the
money in the coin boxes to the bar owners and used
some of that revenue to meet the expenses of the
business (such as leasing the machines and obtaining
amusement licenses for them from the state). Scialabba,
282 F.3d at 476. We noted that none of the defendants’
conduct entailed financial transactions to hide or invest
profits in order to evade detection, the normal under-
standing of money laundering. Rather, the focus was
entirely on the disposition of the gross income of the
operation and, accordingly, the convictions rested on the
proposition that gross income is “proceeds” under the
statute. 282 F.3d at 476.
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 33

Because the statute lacked a definition of “proceeds” (it
has one now—more on that later), we considered the
ordinary meaning of that word in the business setting.
In the context of lawful gambling, we found that the
more sensible interpretation of “proceeds” would be net
profits. Citing the rule of lenity, we noted that it would
have been easy for Congress to use the word “receipts” in
lieu of “proceeds” if it had meant to include gross
income. Scialabba, 282 F.3d at 477. We also noted that if
we treated the “proceeds” as synonymous with “gross
receipts,” we would have to consider the additional
question of “whether, as a matter of statutory construc-
tion (distinct from double jeopardy), it is appropriate to
convict a person of multiple offenses when the transac-
tions that violate one statute necessarily violate another.”
Scialabba, 282 F.3d at 477. By interpreting “proceeds” as
profits, we noted we would eliminate any overlap
between statutes. We therefore held “that the word ‘pro-
ceeds’ in § 1956(a)(1) denotes net rather than gross
income of an unlawful venture.” Scialabba, 282 F.3d at 478.
The government asked us to reconsider that holding in
United States v. Santos, 461 F.3d 886 (7th Cir. 2006) (hereaf-
ter “Santos I”). Santos and his co-defendant Diaz ran an
illegal lottery and, like the Scialabba defendants, were
charged with money laundering under § 1956(a)(1)(A)(i).
They were charged under that subsection with con-
spiring to use the proceeds of an illegal gambling
business to promote the carrying on of the business. They
were also charged in a substantive money laundering
count with laundering funds by completing a financial
transaction with the proceeds of the illegal gambling
34 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

business with the intent to promote the carrying on of
the business. Both counts were premised, then, on “pro-
motional” money laundering, that is, using the proceeds
of unlawful activity to promote an unlawful activity.
Santos I, 461 F.3d at 888. The government proceeded at
trial (a trial that pre-dated our decision in Scialabba)
under the theory that proceeds meant gross receipts as
opposed to net income. The defendants then were con-
victed on evidence that the government conceded would
not support a conviction if “proceeds” meant net rather
than gross income. Although the convictions were
affirmed on direct appeal, the district court later granted
habeas corpus relief under 28 U.S.C. § 2255, and vacated
the convictions. Santos I, 461 F.3d at 888-89.
The government appealed the district court’s grant of
habeas relief, urging us to overturn Scialabba. We noted
that the unlawful activity at issue was running an
illegal lottery. The financial transactions that were the
subject of the money laundering counts were payments to
the lottery’s winners and to the middlemen, collection
agents and runners who ran the scheme for the defen-
dants. For Diaz, the money laundering conspiracy convic-
tion was based on payments he received for collection
services for the lottery. For Santos, the money laundering
charges were based on payments he made to the middle-
men and to the lottery’s winners. We noted that Scialabba,
applying the rule of lenity and also seeking to avoid
convicting a person of multiple offenses when the trans-
actions that violate one statute necessarily violate
another, interpreted the term “proceeds” in Section
1956(a)(1) to mean net income. Santos I, 461 F.3d at 890.
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 35

See also Scialabba, 282 F.3d at 475 (“We conclude that, at
least when the crime entails voluntary, business-like
operations, ‘proceeds’ must be net income; otherwise
the predicate crime merges into money laundering (for
no business can be carried on without expenses) and the
word ‘proceeds’ loses operational significance.”). Applying
Scialabba to the facts presented by the government against
Santos and Diaz, we found that the district court correctly
vacated the convictions. Santos I, 461 F.3d at 891.
We declined to overrule Scialabba and rejected the
notion that Scialabba eviscerated the promotional prong
of Section 1956(a)(1). Santos I, 461 F.3d at 892-93. We
drew a distinction between paying expenses of a
criminal operation and reinvesting net income:
While, under Scialabba, the act of paying a criminal
operation’s expenses out of its gross income is not
punishable under § 1956(a)(1)(A)(i)—but rather is
punishable as part of the underlying crime—the act
of reinvesting a criminal operation’s net income
to promote the carrying on of the operation is still
punishable under § 1956(a)(1)(A)(i).
Santos I, 461 F.3d at 893. We also noted that Scialabba
mentioned concealment money laundering only to point
out that concealment was not at issue and that the gov-
ernment’s case instead rested solely on the disposition
of the gross income of unlawful activity and whether
that disposition was illegal under Section 1956(a)(1)(A)(i).
Santos I, 461 F.3d at 893. Scialabba mentioned “the lack
of concealment simply to show that, to resolve the case,
36 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

the court had no alternative but to interpret the word
proceeds.” Santos I, 461 F.3d at 893.
The Supreme Court granted the government’s petition
for certiorari in Santos I, to consider “whether the term
‘proceeds’ in the federal money-laundering statute, 18
U.S.C. § 1956(a)(1), means ‘receipts’ or ‘profits.’ ” Santos II,
128 S. Ct. at 2022. Although five justices affirmed the
judgment in Santos I, the case resulted in a fractured
opinion. Four justices concluded that proceeds means
net profit in Section 1956(a)(1). Santos II, 128 S. Ct. at 2025.
Four justices concluded that the term proceeds means “the
total amount brought in.” 128 S. Ct. at 2035 (Alito, J.,
dissenting). And one justice concluded that the meaning
of the term “proceeds” could depend upon the particular
underlying predicate offense, any legislative history
speaking to the meaning of the term, and whether the
merger problem would arise under the particular
meaning ascribed to the term. Santos II, 128 S. Ct. at 2033
(Stevens, J., concurring). Because in this instance there
was no legislative history speaking to the definition
of proceeds for the underlying predicate offense of oper-
ating a gambling business, and because interpreting
proceeds to mean gross receipts under these circum-
stances would result in the merger problem,
Justice Stevens concluded that the rule of lenity would
favor the more narrow definition of proceeds as net
profits adopted by the plurality. Id.
The plurality in Santos II acknowledged that Justice
Stevens’ vote was necessary to the judgment, and noted
that the Court’s holding was therefore limited to
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 37

the narrower ground upon which his opinion rested.
Santos II, 128 S. Ct. at 2031. The plurality and Justice
Stevens then disagreed on the characterization of that
narrower ground. The plurality declared:
But the narrowness of his ground consists of finding
that “proceeds” means “profits” when there is no
legislative history to the contrary. That is all that our
judgment holds. It does not hold that the outcome
is different when contrary legislative history does
exist. Justice STEVENS’ speculations on that point
address a case that is not before him, are the purest
of dicta, and form no part of today’s holding. Thus,
as far as this particular statute is concerned, counsel
remain free to argue Justice STEVENS’ view (and to
explain why it does not overrule Clark v. Martinez,
supra). They should be warned, however: Not only
do the Justices joining this opinion reject that view,
but so also (apparently) do the Justices joining the
principal dissent. See post, at 2036, 2044.
Santos II, 128 S. Ct. at 2031. Justice Stevens responded:
In what can only be characterized as the “purest of
dicta,” the plurality speculates about the stare decisis
effect of our judgment and interprets my conclusion
as resting on the ground that ” ‘proceeds’ means
‘profits’ when there is no legislative history to the
contrary.” Ante, at 2031. That is not correct; my con-
clusion rests on my conviction that Congress could
not have intended the perverse result that the
dissent’s rule would produce if its definition of “pro-
ceeds” were applied to the operation of an unlicensed
38 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

gambling business. In other applications of the
statute not involving such a perverse result, I would
presume that the legislative history summarized by
Justice ALITO reflects the intent of the enacting Con-
gress. See post, at 2035 - 2036 and n. 1 (opinion of
ALITO, J.). Its decision to leave the term undefined
is consistent with my view that “proceeds” need not
be given the same definition when applied to each
of the numerous specified unlawful activities that
produce unclean money. Clark v. Martinez, 543 U.S.
371, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005), poses no
barrier to this conclusion. In Martinez there was no
compelling reason—in stark contrast to the situa-
tion here—to believe that Congress intended the
result for which the Government argued.
Santos II, 128 S. Ct. at 2034 n.7.
Each of these cases dealt with the “promotional” prong
of the money laundering statute; none addressed the
concealment prong, the part that is at issue here.
Compare 18 U.S.C. § 1956(a)(1)(A)(i) (criminalizing the
conducting of financial transactions involving the
proceeds of specified unlawful activity with the intent to
promote the carrying on of specified unlawful activity) with
18 U.S.C. § 1956(a)(1)(B)(i) (criminalizing the conducting
of financial transactions involving the proceeds of
specified unlawful activity knowing that the transaction is
designed in whole or in part to conceal or disguise the nature,
the location, the source, the ownership, or the control of the
proceeds of specified unlawful activity). Indeed, the part of
the statute at issue here involves not only concealment
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 39

but concealment that is carried out across international
borders. See 18 U.S.C. § 1956(a)(2)(B)(i) (criminalizing
transporting, transmitting or transferring funds from
a place within the United States to a place outside the
United States (or vice versa) knowing that the funds
represent the proceeds of some form of unlawful
activity, and knowing that the transportation, transmis-
sion or transfer is designed in whole or in part to conceal
or disguise the nature, the location, the source, the owner-
ship, or the control of the proceeds of specified unlawful
activity). Nor did any of these cases address money
laundering in the context of the predicate crime of wire
fraud.
When the predicate crime is wire fraud and the
money laundering alleged is the international conceal-
ment variety, the merger problem can disappear entirely,
and in fact, does disappear from the circumstances pre-
sented here. There is no overlap between the wire
fraud for which Fechete was convicted and the money
laundering scheme that occurred subsequent to the
completed wire fraud. To obtain a conviction for wire
fraud, the government was required to prove the defen-
dant’s participation in a scheme to defraud, his intent to
defraud, and his use of the wires in furtherance of the
fraudulent scheme. United States v. McGowan, 590 F.3d
446, 457 (7th Cir. 2009); United States v. Roberts, 534 F.3d
560, 569 (7th Cir. 2008), cert. denied, 129 S. Ct. 1028 (2009).
The wire fraud statute punishes the scheme, not its
success. Pasquantino v. United States, 544 U.S. 349, 371
(2005). See also United States v. Coffman, 94 F.3d 330, 333
(7th Cir. 1996) (the wire fraud statute punishes the
40 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

scheme rather than the completed fraud). In Coffman, we
described wire fraud as a “crime of attempting rather
than attaining.” 94 F.3d at 337. The fraud is therefore
complete once a defendant with the requisite intent
has used the wires in furtherance of a scheme to
defraud, whether or not the defendant actually collects
any money or property from the victim of the scheme.
United States v. Lorefice, 192 F.3d 647, 655-56 (7th
Cir. 1999) (wire fraud may be complete even where the
fraudulent scheme was interrupted before any concrete
harm had been inflicted); Coffman, 94 F.3d at 337 (even
if the fraud inflicted no actual loss, it may nevertheless
be a completed offense); United States v. Strozier, 981
F.2d 281, 285 (7th Cir. 1992) (a fraud is not incomplete
merely because circumstances prevented the defendant
from inflicting greater loss upon the victim). In this case,
the crime of wire fraud was complete no later than
when the victims wired their money to the defendants
via Western Union. By that point, Fechete had entered
into a plan with the Foreign Co-schemers to engage
in internet fraud. He had supplied to the Foreign Co-
schemers, via text message and email, false names to use
to lure victims, and the victims, having taken the bait,
had wired their money via Western Union to the
waiting Fechete. Even if Fechete had been arrested
walking into the currency exchange, he would have been
guilty of wire fraud by that time, even if the victims
had not been deprived of their funds.
The money laundering, on the other hand, did not
occur until Fechete collected the wired proceeds, con-
verted those funds to cash, took his own cut of the pro-
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 41

ceeds, paid any co-schemers who had participated in
collecting the wired funds, and then wired the remaining
funds to the Foreign Co-schemers in Romania, again
using false identities and multiple parties in order to
conceal the source, the ownership and the control of
those funds. Although this action aided the Foreign Co-
Schemers and ensured that the Foreign Co-schemers
would send Fechete repeat business, none of this part
of the scheme was necessary to the proof of the wire
fraud. It formed an entirely separate offense of money
laundering. In a sense, sending some of the money to
Romania was the second chapter of the internet fraud
story. But each chapter stood alone as a crime. The
only connection, as required by the money laundering
statute, was that the money which was laundered was
the product of specified unlawful activity, in this case
wire fraud.
Fechete argues that the money he sent to Romania
was not “proceeds” of wire fraud as that term has been
defined in Santos II and Scialabba. Fechete contends
that only net profits count as proceeds under Santos II.
Because the government concedes it did not prove how
the money was used in Romania, Fechete argues that it
would be speculative to characterize that money as
net profits. There may have been more expenses to be
covered on the Romanian side of the scam, and there is
no way to know how much of the money that went to
Romania was net profit and how much covered addi-
tional expenses. Although we can only speculate on the
disposition of the money in Romania, we know that the
amount sent to Romania was not strictly gross receipts
42 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

because Fechete had already subtracted his own cut
and any payments he made to co-schemers in the
United States. If Santos II requires that proceeds of
wire fraud in the context of concealment money
laundering means pure profit, then there was error in
allowing the jury to assume otherwise.
We have had few occasions to interpret the Supreme
Court’s opinion in Santos II. See United States v. Lee, 558
F.3d 638 (7th Cir. 2009); United States v. Hodge, 558 F.3d
630 (7th Cir. 2009). In Hodge, the defendants were con-
victed of conspiring to operate a racketeering enterprise
through interstate facilities in violation of 18 U.S.C. §§ 371
and 1952(a)(3). This is a fancy way of saying that they
ran a brothel and accepted credit card payments that
were processed through interstate wires. They also were
convicted of conspiring to engage in money laundering
in violation of § 1956(a)(1)(A) and (h). The govern-
ment’s theory was that they violated § 1956 by paying
the business expenses of the brothel, such as rent, adver-
tising, utilities, and so on. Hodge, 558 F.3d at 632. We
noted that Scialabba and Santos I held that “proceeds”
means an illegal business’ net income rather than its
gross income. We rejected the government’s claim that,
under these cases, the amount that remained after the
prostitutes were paid represented net profits. We held
that “[t]o determine the net proceeds of a transaction,
which is to say the profits, one must subtract all costs
of doing business, not just an arbitrary subset of the
costs.” Hodge, 558 F.3d at 632 (emphasis in original).
We characterized Scialabba as holding “that paying the
ordinary and necessary expenses of a business is not a
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 43

federal crime, just because that business violates state
laws.” Hodge, 558 F.3d at 632. But answering the ques-
tion of what constituted net profits under Scialabba did
not address the “real question [of] whether Scialabba
survived the Supreme Court’s decision in Santos [II].”
We commented:
Four Justices in Santos [II] concluded that “proceeds”
in § 1956 always means net income. Four concluded
that the word always means gross income. Justice
Stevens concluded that the meaning depends on the
nature of the crime—that it means net income for
unlicensed gambling (the subject of Santos [II] and
Scialabba) but could mean gross income for drug
rings. We asked the parties to file supplemental briefs
addressing the question how Santos [II] applies to a
brothel (operated in a place where prostitution is
unlawful) that lets the patrons pay by credit card.
The United States has conceded that the net-income
approach of Scialabba remains controlling.
Whether the concession was appropriate is a difficult
question, which we need not answer since the pros-
ecutor has forfeited any benefit that Justice Stevens’s
approach may offer.
Hodge, 558 F.3d at 633-34. The main import of this passage
is that whether Scialabba survives Santos II is an open
and “difficult” question. With the law unsettled, the
error cannot be plain. United States v. Gibson, 530 F.3d
606, 612 (7th Cir. 2008) (where there is an unsettled ques-
tion, the error is not plain and does not fall with Rule 52).
44 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

Taking a single sentence out of context, Fechete
contends that our opinion in Lee held that Scialabba
was not limited to the promotional prong of the money
laundering statute. In Lee, we again addressed convic-
tions for racketeering arising from running brothels
and accepting credit card payments, as well as money
laundering convictions arising from paying the expenses
of running a prostitution business, including rent, ad-
vertising, phone bills and wages. Lee, 558 F.3d at 640.
In recounting our analysis in Santos I and Scialabba,
we stated that, in Santos I:
We did clarify and confirm that the statute does in-
deed prohibit both concealment of net proceeds and
the reinvestment of net proceeds to promote the
illicit activity; Scialabba had not suggested otherwise.
Lee, 558 F.3d at 642 (citing Santos I, 461 F.3d at 892-93).
Fechete stakes his claim that we did not limit Scialabba’s
net profits analysis to promotional money laundering
on this single sentence from Lee. But Lee was merely
repeating a narrower point we had made in Santos I. In
Santos I, the government argued that Scialabba had eviscer-
ated the promotional prong of the money laundering
statute and limited the crime of money laundering to
concealment situations only. In response, we clarified:
This is a misreading of Scialabba. 282 F.3d at 476. To
be sure, the statute criminalizes the concealment of
proceeds and also prohibits the use of proceeds to
promote the illicit activity.
Santos I, 461 F.3d at 892-93. Although in Lee we used the
term “net proceeds” instead of “proceeds” when we
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 45

were recounting our reasoning in Santos I, the point was
that Scialabba had not eviscerated the promotional prong
of the money laundering statute. The meaning of “pro-
ceeds” in the concealment context was not at issue in
Lee and this difference in phrasing does not have the
force of a holding. We have not addressed the meaning
of “proceeds” in the concealment context. The law
remains unsettled and the error is therefore not plain.
Post-Santos II decisions from other circuits fortify our
conclusion that any error (if there was error) was not
plain. In United States v. Fernandez, 559 F.3d 303 (5th Cir.
2009), the Fifth Circuit considered a sufficiency of
the evidence challenge to a conviction for concealment
money laundering. Several defendants in the case were
charged with drug trafficking offenses, but Fernandez
was charged only with money laundering. Fernandez
engaged in several highly complex real estate transac-
tions, taking money derived from the drug trafficking
offenses, channeling it through shell corporations and
real estate transactions and then returning it to the
drug traffickers. Fernandez was charged with both con-
spiracy and substantive money laundering under
§ 1956(a)(1)(B)(i). The jury was instructed that “ ‘proceeds’
includes any property, or any interest in property,
that someone acquires or retains as a result of the com-
mission of the underlying specified unlawful activity.”
559 F.3d at 315-16. Although he did not object to this
instruction at trial, Fernandez brought a claim for plain
error on appeal based on the Supreme Court’s inter-
vening opinion in Santos II. After noting that Justice
Stevens did not agree with the plurality that the rule of
46 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

lenity must apply to the definition of proceeds when
the underlying criminal activity involved the sale of
contraband and the operation of organized crime syndi-
cates, the court concluded, “While Justice Stevens and
the plurality disagreed over the precise precedential
effect of his statement, the uncertainty renders any
error here not ‘plain’.” 559 F.3d at 316.
The Eleventh Circuit also considered a plain error
challenge to a conviction for money laundering under
§ 1956(a)(3)(A),(B). United States v. Demarest, 570 F.3d
1232 (11th Cir. 2009). That part of the money laundering
statute addresses financial transactions conducted with
“property represented to be the proceeds of specified
unlawful activity,” where the representations come
from undercover law enforcement officers or persons
cooperating with law enforcement officers. In this
instance, undercover law enforcement officers arranged
to purchase a boat from Demarest with cash that they
told him came from the sale of cocaine. On appeal,
Demarest challenged his conviction under Santos II on
the ground that the agents represented to him that the
money involved in the purchase was gross receipts of
drug trafficking rather than net profit. 570 F.3d at 1241.
The Eleventh Circuit noted that Santos II has limited
precedential value because of the split nature of the
decision. The court commented that the “narrow holding
in Santos [II], at most, was that the gross receipts of an
unlicensed gambling operation were not ‘proceeds’ under
section 1956.” 570 F.3d at 1242. Because the laundered
funds in Demarest’s conviction came from drug traf-
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 47

ficking rather than a gambling enterprise, the Eleventh
Circuit found that Santos II did not apply.
We reach a similar conclusion here. If there was error,
it was not plain. First, Santos II and Scialabba did not
resolve the meaning of the word “proceeds” for conceal-
ment money laundering. Each case limited its holding
to Section 1956(a)(1) and Fechete was charged under
Section 1956(a)(2)(B)(i). True, the Santos II plurality
held the view that the meaning of the word “proceeds”
“cannot change with the statute’s application.” 128 S. Ct.
at 2030. And the four justices joining the dissent agreed
that the meaning of the term “proceeds” does not
change depending on the nature of the predicate illegal
activity. 128 S. Ct. at 2035-36 (Alito, J., dissenting). But the
dissent held the view that proceeds always means gross
receipts, and approved Justice Stevens’ approach to the
extent that it “preserves the correct interpretation of the
statute in most of the cases that were the focus of Con-
gressional concern when the money laundering statute
was enacted.” 128 S. Ct. at 2036 (Alito, J., dissenting).
There seems little doubt that the four justices of the
dissent and Justice Stevens (who, of course, is no longer
an active member of the Court)1 1 would have little
trouble upholding Fechete’s conviction for concealing
money that was mostly (or perhaps entirely) profit from
a wire fraud operation. That the government could not
prove what part of the money sent to Romania was

11
Justice Souter, who was part of the majority in Santos II, is
also no longer an active member of the Court.
48 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

profit likely would not move the dissenting or con-
curring justices in a concealment case; otherwise, the
more successfully criminals were able to commit the
crime of concealment, the less chance the government
would have of prosecuting the case to conviction. It seems
unlikely that Congress intended to require proof of
how funds transmitted to another country were then
spent when the point of Section 1956(a)(2)(B)(i) is to
criminalize transactions designed to make it difficult to
track or recover illegally obtained money. Indeed, Con-
gress amended the statute following Santos II to define
“proceeds” as “any property derived from or obtained
or retained, directly or indirectly, through some form of
unlawful activity, including the gross receipts of such
activity.” 18 U.S.C. § 1956(c)(9).
Second, as we discussed above, there is no merger
problem presented here because the wire fraud was
complete without the additional transmission of the
money to Romania. There is no factual or legal overlap
between the crimes of wire fraud and concealment
money laundering as charged here. Had the govern-
ment charged as money laundering the victims’ trans-
mission of funds to currency exchanges via Western
Union, the so-called merger problem may have
presented itself. But the government charged Fechete
with a second transmission of those funds, after most
expenses had been extracted, not for the purpose of
carrying on the scheme but for the purpose of hiding
the profits.
Third, unlike a brothel or an illegal gambling opera-
tion (which we characterized in Scialabba as a “voluntary,
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 49

business-like operation”), the scheme here was an un-
business-like operation of pure thievery. The scheme
was not to sell inferior goods or counterfeit goods or
even stolen goods using the internet. There were no
goods at all; the entire point of the scheme was to
induce people to part with their money in return for
nothing. This was not a “voluntary business” having
any true overhead expenses. It was simple theft. The
rule of lenity would not help Fechete here because any
thief would understand that he could not deduct the
cost, for example, of his mask and gun from the loot in
calculating the “proceeds” of the crime for which he
would be held accountable. So too with this scheme, all
of the victims’ money could be characterized as “profit,”
although we need not go that far. Under the facts
alleged in the indictment, the only funds at issue in the
money laundering count were those sent to Romania
after the expenses of paying off the U.S. Co-schemers
had been deducted. No one would be caught by surprise
to discover that this amount would be considered “pro-
ceeds” for the purposes of the concealment prong of the
money laundering statute. See Scialabba, 282 F.3d at
477 (finding that the rule of lenity counsels against trans-
muting “proceeds” into “receipts” and “catching people
by surprise in the process”).
We need not predict how the Court would ultimately
rule, though, because the doubt alone is enough to
render any error not plain; it was neither clear nor obvi-
ous. Olano, 507 U.S. at 734 (an error is plain if it is
clear or obvious). The fractured Supreme Court opinion
addressed only promotional and not concealment money
50 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

laundering (much less international concealment money
laundering). And even in the context of promotional
money laundering, it is not clear how the Court as a
whole would rule if the predicate crime was wire fraud
that was complete before the money laundering began.
We emphasize that we are not today answering the
question of whether “proceeds” means net profits or
gross receipts when the predicate offense is wire fraud
and the money laundering involves concealment rather
than promotion. We reserve that issue for a case where
it is squarely presented. Our only holding today is that
the district court did not commit plain error when it did
not limit the jury’s consideration of “proceeds” to the
net profits of the internet fraud scheme in a case
brought under § 1956(a)(2)(B)(i). Fechete’s conviction
for money laundering will stand.

2.
Fechete was also charged with aggravated identity
theft in violation of 18 U.S.C. § 1028(a)(1). That statute
“imposes a mandatory consecutive 2-year prison term
upon individuals convicted of certain other crimes if,
during (or in relation to) the commission of those other
crimes, the offender ‘ knowingly transfers, possesses, or
uses, without lawful authority, a means of identifica-
tion of another person.’ ” Flores-Figueroa v. United States,
129 S. Ct. 1886, 1888 (2009). Fechete was charged with
possessing a Canadian passport in conjunction with
wire fraud. The government took the position at trial
that it was not required to prove that Fechete knew the
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 51

passport belonged to an actual person as opposed to a
fictitious one. In fact, the government conceded that it
could not prove that Fechete had this knowledge. The
district court agreed with the government that this
proof was not necessary to sustain a conviction for ag-
gravated identity theft. After his conviction, Fechete
moved for a judgment of acquittal on the aggravated
identity theft charge on the grounds that the govern-
ment failed to prove that he knew the passport belonged
to a real person. The district court denied that motion.
Subsequent to Fechete’s trial, the Supreme Court ruled
that the statute requires the government to show that
the defendant knew that the “means of identification”
he or she unlawfully transferred, possessed, or used, in
fact, belonged to “another person.” Flores-Figueroa, 129
S. Ct. at 1888. In other words, the statute requires that
the defendant know the document belonged to a real
person and was not simply a purely fictitious creation
not tied to any person. As it did below, the govern-
ment concedes on appeal that the evidence presented at
trial was insufficient to prove that Fechete knew the
passport belonged to another person as opposed to
being a purely fictitious document. We agree that the
case against Fechete was insufficient under the standard
set in Flores-Figueroa. We therefore vacate Fechete’s con-
viction for aggravated identity theft.

3.
Fechete also raises two challenges to his sentence. He
claims first that the court erred in finding that he
52 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

possessed a gun in connection with the wire fraud of-
fenses. Second, he contends that the court erred in at-
tributing to him losses of more than $1,000,000 to
more than 250 victims.
We begin with the gun. The court applied a two-
level enhancement to Fechete’s sentence under Section
2B1.1(b)(13)(B) for possession of a dangerous weapon
(including a firearm) “in connection with” a fraud
offense.12 Fechete does not dispute that he possessed
a gun. Law enforcement officers recovered a loaded
Glock 9mm semi-automatic pistol from a hole under a
false bottom of a cabinet in Fechete’s apartment. The
same compartment contained false identification docu-
ments for Fechete and others, and passport photographs
of some of Fechete’s co-schemers. Schneider told law en-
forcement officers that when he complained to Fechete
that he had been injured by a friend in a fight, Fechete
pulled out a pistol, inserted the magazine, and bragged
that he would shoot the person who hurt Schneider.
Schneider also saw Fechete wave the gun around while
performing a “Tony Montana” imitation for friends at

12
Fechete was sentenced under the 2007 version of the guide-
lines. In that version, this enhancement was contained in
subsection (b)(12)(B) of Section 2B1.1. Although it was subse-
quently renumbered to subsection (b)(13)(B), the relevant
language remained the same and we will use the new num-
bering system.
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 53

his apartment.13 This is the entirety of the govern-
ment’s evidence that the gun was possessed “in connec-
tion with” the wire fraud offenses.
The government contends that the gun’s proximity to
false identification documents provides evidence that
the gun was possessed in connection with the wire fraud
offenses. The government relies on cases where we
held that guns found in close proximity to illegal drugs
are presumptively considered to have been used in con-
nection with the drug offense. See United States v. Booker,
248 F.3d 683, 689 (7th Cir. 2001). Although we have re-
peatedly held that guns are well-known tools of the drug
trade, there is no corresponding case law supporting
the idea that guns are well-known tools of the wire
fraud trade. See United States v. Are, 590 F.3d 499, 527-28
(7th Cir. 2009), cert. denied, 131 S. Ct. 73 (2010) (noting
that we have consistently held that guns are recognized
tools of the drug trade, and that the possession of a gun
can advance the possession and future distribution of
narcotics by protecting the drugs or the drug dealer). Wire
fraud conducted over the internet is not typically a con-

13
“Tony Montana” is the main character in the 1983 movie
“Scarface.” Portrayed by Al Pacino, Montana is a violent drug
lord and hit man. Roger Ebert describes the character
as a Cuban ex-con who “begins with no resources or weap-
ons except for his bravado, and fakes out more powerful
men simply by seeming dangerous and resourceful.” See
http://rogerebert.suntim es.com /apps/pbcs.dll/article?AID=
/20030928/REVIEWS08/309280301/1023 (last visited May 9, 2011).
54 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

frontational crime and does not involve the same sorts
of risks that are inherent in the drug trade. That the
gun was found with false identification documents does
not tell us anything more than Fechete placed together
objects he wished to hide. Fechete’s claim that he
would use the gun to protect Schneider was entirely
unrelated to the internet fraud scheme and thus does not
add to the evidence that the gun was used “in connection
with” the fraud. As for brandishing the gun in imitation
of a movie character, this conduct again was entirely
unrelated to the fraud scheme. The government did not
present any evidence that Fechete carried the gun to
currency exchanges or used it in the scheme at all. There
is simply not enough evidence to tie the gun to the
scheme. When Fechete is resentenced, the district court
may not apply the Section 2B1.1(b)(13) enhancement for
possession of a dangerous weapon in connection with
a fraud offense.
We turn finally to Fechete’s claim that the court failed
to make appropriate findings regarding the scope of
jointly undertaken criminal activity and the foresee-
ability of losses totaling more than $1,000,000 to more
than 250 victims. After we issued our decision in
United States v. Salem, 597 F.3d 877 (7th Cir. 2010), the
government conceded that the district court failed to
make appropriate findings regarding the scope of jointly
undertaken criminal activity. Our review of the record
confirms the government’s concession. On remand, the
district court should apply the approach we set forth
in Salem for Section 1B1.3(a)(1)(B) enhancements. The
court must first make a preliminary determination of the
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 55

scope of the criminal activity the defendant agreed to
jointly undertake. Salem, 597 F.3d at 886. “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 reasonably foreseeable to the de-
fendant in connection with the joint criminal activity.”
Salem, 597 F.3d at 886.
The government asks us to limit the remand to the
question of the scope of jointly undertaken criminal
activity. Fechete wishes additionally to contest the re-
liability of the government’s spreadsheets which the
court used to calculate the losses to victims and the
number of victims. He also challenges the court’s finding
that the conduct of Moloman and Salem was reasonably
foreseeable to him. Finally, he notes that the court erred
in adding together the numbers of victims and amount
of losses for Fechete himself, Schneider and Vega. We
do not interpret his complaint about foreseeability
findings as applying to the court’s finding that losses to
the victims of Schneider and Vega were reasonably fore-
seeable to him. Such a challenge would fail in any case
because a finding of foreseeability is not required under
Section 1B1.3(a)(1)(A), which holds a defendant liable
for “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant[.]” The trial presented more
than adequate evidence that Fechete recruited Schneider
and Vega and directed their activities in the scheme.
The government is correct that Fechete did not object
to the use or accuracy of the government’s spreadsheets
56 Nos. 08-1486, 08-1678, 08-3789 & 08-4136

even though he was given an opportunity to do so. More-
over, Fechete himself relied on the spreadsheets in pre-
senting the court with alternative calculations of losses.
By affirmatively relying on those documents himself,
Fechete has waived any objections to the reliability of
the spreadsheets and there is no reason to re-litigate that
issue on remand. Salem, 597 F.3d at 890 (waiver is the
intentional relinquishment of a known right which pre-
cludes appellate review).
Finally, we find no error in the district court’s findings
that Fechete reasonably foresaw the conduct of Moloman
and Salem. The evidence supporting this finding in-
cluded (1) Panaitescu’s testimony that he, Moloman and
Fechete shared rides to currency exchanges; (2) records
from Western Union and currency exchanges showing
that Fechete frequented the same currency exchanges
as Moloman and Salem; (3) documents seized from
Fechete’s apartment including mail for Moloman and
documents in the name of an alias used by Salem; and
(4) use of the same telephone numbers and addresses
by Salem and Fechete when collecting money from West-
ern Union agents at currency exchanges. Because the
court did not make adequate findings, however, re-
garding the scope of jointly undertaken criminal activ-
ity, the correct amount of foreseeable losses and victims
remains to be determined on remand. We trust that the
district court will also correct on remand the math-
ematical errors that appear to have been made when
calculating losses attributable to Fechete for Schneider
and Vega.
Nos. 08-1486, 08-1678, 08-3789 & 08-4136 57

II.
In sum, we grant the motion of Aslan’s attorney to
withdraw and we dismiss Aslan’s appeal. We dismiss
Panaitescu’s appeal as well, because the appeal waiver
contained in his plea agreement precludes review of any
of the issues he now raises. We affirm Dumitru’s sen-
tence. We vacate Fechete’s conviction for aggravated
identity theft, affirm his conviction for money laun-
dering, and vacate and remand his sentence for further
proceedings consistent with this opinion.

5-12-11