In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-2533 & 10-2534
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R AIMONDORAY C ERNA and
M ARIAN A LEXANDRU,
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 JANUARY 17, 2012—D ECIDED A PRIL 10, 2012
Before E ASTERBROOK, Chief Judge, and C UDAHY and
H AMILTON, Circuit Judges.
C UDAHY, Circuit Judge. This case involves defendants
who received sentences within the sentencing guideline
range but claim the court incorrectly calculated the guide-
line range.
Raimondoray Cerna and Marian Alexandru are Roma-
nian nationals who resided in the United States illegally
2 Nos. 10-2533 & 10-2534
while participating in an international scheme to
defraud online auction bidders. Individuals located
primarily in Romania posed as United States-based
sellers of goods on eBay and other online auction sites.
A co-schemer would bid on a fabricated listing and
“win” the auction. Another co-schemer would then
contact a legitimate bidder, tell the bidder that the
auction winner had backed out of the deal and then
offer to sell the items to the bidder. Victims were in-
structed to send payment by wire transfer. When
victims wired funds, co-schemers inside the United
States, including Cerna and Alexandru, would pick
up the payments using false identification. The domestic
co-schemers would keep a percentage of the proceeds
for themselves and send the remainder to the co-
schemers in Romania. Of course, victims never received
the goods for which they paid. This scheme operated
for approximately two and half years, with more than
2,000 victims suffering losses totaling over $6,000,000.
Cerna oversaw and directed a number of co-schemers,
including Alexandru, Gabriel Constantin, Ioan Moloman,
Constantin Remus Lucan, Mihai Panaitescu, Mihail
Eugen Hann, Stefan Laurentiu Dumitru, Adrian Florin
Fechete, Aida Salem and Lucian Nanau, who operated
in the Chicago area, Michigan and southern Florida.
Cerna obtained counterfeit identification documents
for this crew and relayed information between them
and the co-schemers in Romania. Members of Cerna’s
crew kept 20% of the fraud proceeds, while Cerna was
given a larger share than the other members.
Nos. 10-2533 & 10-2534 3
Both Cerna and Alexandru have previously been de-
ported based on their commission of criminal offenses.
Cerna was convicted of fraud, for which he received
a sentence reduction due to his cooperation with the
government. Immediately after his deportation to Roma-
nia, however, Cerna illegally reentered the United States
using a false passport that he never disclosed to the
government during his earlier cooperation.
Cerna and Alexandru were both arrested in southern
Florida in September 2005. Cerna was arrested on a
federal warrant for illegal reentry, and Alexandru for
unauthorized possession of identification under Florida
law, and later for illegal reentry. Later, they were each
charged with multiple counts of wire fraud. Both men
pleaded guilty; Alexandru with a plea agreement and
Cerna without.
At Cerna’s sentencing, the district court read the pre-
sentence report and the government’s version of it. The
district court calculated Cerna’s offense level as 21
based on: an uncontested loss amount of $1 million to
$2.5 million dollars; more than 250 victims; a contested
three-level role adjustment; and a three-point reduction
for timely acceptance of responsibility. The three-level
increase was based on the district court’s finding that
Cerna played a managerial role in the scheme. The
district court determined that Cerna’s criminal history
category was V. The resulting guideline range was 168
to 210 months. After considering the sentencing factors
in 18 U.S.C. § 3553(a), the court imposed a 180-month
sentence.
4 Nos. 10-2533 & 10-2534
Cerna appeals, arguing that the district court erred
in its finding that he held a managerial role; that his
sentence is unconstitutionally disparate from the sen-
tences of his co-defendants; and that the court misap-
plied the § 3553(a) factors.
Alexandru pleaded guilty to wire fraud pursuant to a
plea agreement. The pre-sentence report for Alexandru
calculated a loss amount of more than $1 million and
detailed his criminal past. Alexandru contested the pre-
sentence report, focusing on the loss figure. The court
found that if losses attributable to co-conspirator Salem
were excluded, the figure would be somewhere be-
tween $400,000 and $1 million. The district court deter-
mined Alexandru’s offense level to be 26 and his
criminal history category to be II. The resulting guide-
line range was 70 to 87 months. If the district court
had concluded that Salem’s losses were properly
included, the offense level would have been 28, and the
resulting range 87 to 108 months. After discussing the
§ 3553 factors, the district court sentenced Alexandru
to 87 months, noting that it would have sentenced
Alexandru to 87 months regardless of the guideline range.
Alexandru appeals. Though he initially argued that
the district court erred in determining the scope of his
relevant conduct, he withdrew this argument in his
reply brief.
Lastly, both defendants argue that their sentences
should be reduced due to prosecutorial delay—both
defendants have been in custody since September 2005
but were not indicted on these charges until 2007.
Nos. 10-2533 & 10-2534 5
Alexandru waived this argument by failing to raise it
at sentencing. Cerna forfeited this argument because he
never presented it to the district court and he has not
argued that the district court’s treatment of this issue
amounts to plain error.
This court reviews factual findings related to the
offense level for clear error. United States v. Morales, 655
F.3d 608, 635 (7th Cir. 2011). We review application of
the Sentencing Guidelines de novo. United States v. Knox,
624 F.3d 865, 870 (7th Cir. 2010). Finally, this court
reviews sentencing decisions for their reasonableness
under an abuse of discretion standard. United States v.
Scott, 631 F.3d 401, 407 (7th Cir. 2011). Since neither
Cerna nor Alexandru presents a meritorious argument,
we affirm both sentences.
I.
Section 3B1.1(b) of the sentencing guidelines provides
a three-level enhancement if “the defendant was a
manager or supervisor (not an organizer or a leader) and
the criminal activity involved five or more participants.”
A court may consider several factors in making this
determination, including: decision-making authority,
nature of participation, recruitment of accomplices,
claim of larger share of fruits of crime, participation
in planning or organizing and the degree of control
exercised by others. See United States v. Howell, 527
F.3d 646, 649 (7th Cir. 2008). No single factor is deter-
minative for a finding that the adjustment applies. See
United States v. Doe, 613 F.3d 681, 687 (7th Cir. 2010).
6 Nos. 10-2533 & 10-2534
Cerna argues that the district court failed to identify
specific conduct indicating that he was a manager or
supervisor. This argument is meritless. The district
court pointed to four findings in the pre-sentence report
to find that Cerna was a manager: (i) receiving informa-
tion from foreign co-schemers regarding funds being
sent by victims and distributing this information to his
crew; (ii) directing his crew to receive victims’ funds
using a variety of aliases; (iii) obtaining counterfeit
alias identification documents for co-schemers; and
(iv) directing co-schemers to transmit funds to foreign
co-schemers. The defendant even admitted in his plea
that he held a managerial role.1
Cerna maintains that he ought not to receive an en-
hancement because he was not the only schemer with
these duties. But this is immaterial; the presence of many
managers does not preclude any one manager from
receiving the enhancement. See United States v. Vallar,
635 F.3d 271, 281 (7th Cir. 2011) citing U.S.S.G. § 3B1.1,
cmt. n.4 (“There can, of course, be more than one
person who qualifies as a leader or organizer of a
criminal association or conspiracy.”).
Cerna raises three more issues relating to his sentence,
claiming that the district court: mistakenly believed a
1
It should be noted that defense counsel objected at sentencing
to the adjustment, claiming that the plea declaration con-
tained errors and should be ignored. However, Cerna had
previously told the court, under oath, that he had read the
declaration, discussed it with his then attorney, and had
no questions about its contents.
Nos. 10-2533 & 10-2534 7
guidelines sentence was required, failed to appreciate
the disparate character of the sentences imposed on the
various schemers and failed to address his mitigation
claims. These claims are also without merit.
First, there is no evidence that the district court
believed a guidelines sentence was mandatory. The
district court carefully considered the § 3553(a) factors,
focusing on the need for general and specific deterrence.
Further, Cerna’s sentence was within his guidelines
range, so a lengthy explanation was not needed. See
United States v. Curby, 595 F.3d 794, 797 (7th Cir. 2010)
(citing United States v. Harris, 567 F.3d 846, 854 (7th Cir.
2009) (“Less explanation is typically needed with a
district court sentences within an advisory guidelines
range.”)). In addition, the district court was not required
to explicitly address every possible mitigation argu-
ment; it needed only to “demonstrate meaningful con-
sideration of § 3553(a) factors.” Vallar, 635 F.3d at 278
(quotations and citations omitted). Clearly the district
court did so.
Second, the district court also addressed Cerna’s dis-
parity claim that he received a much harsher sentence
than his co-schemers. As an initial matter, we note
that because Cerna received a sentence within the guide-
line range, we will “assume that significant considera-
tion has been given to avoiding unwarranted disparities
between sentences.” United States v. Statham, 581 F.3d 548,
556 (7th Cir. 2009). The district court explained that
the cause of any apparent disparity lay in Cerna’s
high offense level, high criminal history category and in
his not receiving a § 5K1.1 assistance reduction. The
8 Nos. 10-2533 & 10-2534
government elected not to make a § 5k1.1 motion for
Cerna because he had earlier received a deal, been de-
ported and then immediately resumed similar offensive
conduct, using aliases that he had hidden from the gov-
ernment. The sentences for other schemers, even those
who had similar responsibilities in the scheme, were
lower than Cerna’s because those defendants either
received cooperation reductions, had lower criminal
history categories or played a smaller role in the
overall scheme than did Cerna. Thus the district court
did not err in issuing Cerna a more onerous sentence.
Third, Cerna’s arguments for mitigation are that
there was an overstatement of his criminal history, an
unwarranted denial of credit for cooperation and his non-
citizenship status (which exacerbated the penalty by
leading to deportation). The district court expressly
addressed these arguments, which are without merit.
First, the criminal history of Cerna is well documented.
Second, due to his eagerness to recidivate, Cerna was
denied a § 5k1.1 reduction by the government. Third,
the court felt the need to issue a stiff sentence to protect
the public, regardless of any post incarceration conse-
quences.
II.
At sentencing, Alexandru acknowledged that the crimi-
nal activity he agreed to jointly undertake included the
acts of co-defendants Cerna, Moloman and Panaitescu.
But he initially argued on appeal that the district
court erred when it also held him responsible for the
Nos. 10-2533 & 10-2534 9
actions of co-defendants Constantin, Ianc, Nanau,
Dumitru, Lucan and Fechete. Alexandru later withdrew
this argument. In any event, this argument is meritless,
as the findings of the district court demonstrate.
In order to be held responsible for “foreseeable acts . . .
of others in furtherance of the jointly undertaken
criminal activity,” as set out in Section 1B1.3(a)(1)(B) of
the sentencing guidelines, the district court must find
that the conduct of others was in furtherance of the joint
criminal activity and reasonably foreseeable to the defen-
dant. United States v. Salem, 597 F.3d 877, 886 (7th Cir.
2010). Here, it is clear that Alexandru agreed to be part
of a group of individuals determined to defraud eBay
users and send a share of the funds to cohorts in Romania.
The district court correctly reviewed the conduct of all co-
defendants and determined that Alexandru’s scope of
activity included the actions of all co-defendants. This
was based on the similarity in the method of operation
followed by all parties, the knowledge of the scope of the
scheme by Alexandru (Alexandru was close to Cerna
and knew he was the head of a crew of individuals), the
length of time Alexandru participated in the scheme
(eight to nine months) and the degree of coordination
between the co-defendants and Alexandru (sharing in-
formation on exchange rates and the best Western
Union offices to use; phone records showing calls between
co-defendants; and obtaining false documents from
the same source).
Alexandru argued that the district court erred when
it failed to provide a detailed analysis of the criminal
10 Nos. 10-2533 & 10-2534
conduct of each co-defendant as it related the district
court’s determination of Alexandru’s scope of conduct.
But this argument fails because this level of analysis is
not required by statute or case law and would be mani-
festly impractical to pursue. The district court’s analysis
comports with the relatively limited approach followed
by this court in Salem.
For these reasons, we A FFIRM the district court’s sen-
tences.
4-10-12