United States v. Serfling, Scott ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1613
UNITED STATES OF AMERICA,
Plaintiffs-Appellees,
v.
SCOTT SERFLING,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 300—Matthew F. Kennelly, Judge.
____________
ARGUED JUNE 7, 2007—DECIDED OCTOBER 5, 2007
____________
Before BAUER, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Scott Serfling and codefendant
Mary Capri engaged in a scheme to defraud Western
United Life Assurance Company (“WULA”) of nearly
$12 million by procuring a loan through repeated false
representations. Capri pleaded guilty, and a jury found
Serfling guilty of two counts of wire fraud, 18 U.S.C.
§ 1343, and one count of mail fraud, id. § 1341. The dis-
trict court entered judgment against Serfling and sen-
tenced him to 78 months’ imprisonment, three years’
supervised release, and restitution in the amount of
$6.75 million. On appeal, Serfling argues that his convic-
tions must be vacated because the government withheld
exculpatory evidence and engaged in prejudicial miscon-
2 No. 06-1613
duct by making improper remarks during the trial. He
contends as well that the district court erroneously
excluded relevant testimony by a banking expert. Serfling
also challenges his sentence, from the calculation of the
guidelines range to the length of his prison term as
compared to Capri’s. For the reasons set forth in the
following opinion, we affirm the judgment of the district
court.
I.
Serfling worked as a car salesman at Celozzi Ford
Dealership in Waukegan, Illinois. In 2000, the dealership’s
owner, Nicholas Celozzi, and Ford agreed to expand the
operation and open a second dealership in Gurnee. Under
the terms of their agreement, Ford would sublease the
property from Celozzi for 25 years for $76,600 per month.
The sublease agreement was to go into effect after con-
struction of the dealership was complete and Celozzi
obtained a certificate of occupancy from the county. Celozzi
selected Serfling as a partner and financial advisor for
the new project.
Construction of the new dealership commenced but
stalled in early 2001 when various contractors and sub-
contractors stopped work because they had not been paid
on schedule. In light of cost overruns, Serfling renegotiated
the sublease agreement with Ford, which agreed to a rent
increase. Months later, Serfling procured another rent
increase, so that Ford would pay $99,800 per month to
sublet the property upon completion of construction and
the issuance of a certificate of occupancy. In November
2001, however, Ford reconsidered, and it terminated the
lease agreement entirely.
Shortly after Ford canceled the contract, Serfling and
Capri embarked on a plan to purchase the Gurnee prop-
erty themselves. At that time the property was controlled
by Fifth Third Bank, which had supplied a construction
No. 06-1613 3
loan. First, Serfling and Capri had the property ap-
praised by Robert Schmidt. Serfling told Schmidt that the
property would be subject to a dealership lease, and in
support of this representation he faxed Schmidt a “pro-
posed” lease agreement between Ford Leasing Develop-
ment Company and Celozzi/Serfling Ford, Inc., whereby
Ford would lease the Gurnee property for $125,000 per
month. In actuality no such agreement existed, but based
on Serfling’s representation, Schmidt valued the property
at $15.7 million.
Serfling and Capri next shopped for a lender to finance
their purchase of the Gurnee property. Acting as a broker,
Capri enlisted a commercial loan broker, Francisco
Gonzalez, to find a lender for a borrower she identified as
Scott Serfling and his company, Serfin Trust LLC. In
response to Gonzalez’s request for documentation, Capri
sent a package containing 1999 and 2000 tax returns
for Serfling and Serfin Trust, signed by Serfling. In fact,
Serfling had not filed tax returns as an individual or on
behalf of Serfin Trust in 1999 or 2000. The package also
included the “proposed” Ford lease agreement. That
document was signed by Serfling and a “Susan Morgan” on
behalf of Ford. Trial testimony revealed that no “Susan
Morgan” worked for Ford.
Armed with the documentation he received from Capri,
Gonzalez began shopping for a loan for Serfling. He found
one at Old Standard Life Insurance, an affiliate of
WULA. Loan officer John Byers testified that he believed
that the loan would be a sound investment based on the
financial strength of Serfling (evinced by his tax returns,
and, later, bank statements) and the long-term lease
with Ford. Eventually Byers, on behalf of Old Standard
and WULA, agreed to loan Serfling and Serfin Trust
$11,750,000.
As a condition of closing on the loan, WULA requested
bank statements from Serfling, who resisted this request
4 No. 06-1613
in a telephone conversation with a WULA representative.
Ultimately, however, Serfling relented, and Capri faxed
statements from Firstar Bank to Gonzalez, who relayed
them to WULA employee Shelli Findley. According to the
statements, Serfling had more than $10,000,000 in a
personal account, and Serfin Trust had a balance of nearly
$1,000,000. Trial testimony later revealed that neither
Serfling or his company ever held accounts at Firstar
Bank.
As WULA continued to investigate the potential bor-
rowers, it attempted to contact “Susan Morgan” to verify
the terms of the Ford lease. An underwriter for WULA
spoke on the telephone with a woman identifying herself
as Susan Morgan. At trial, Serfling stipulated that the
telephone number provided on the phony lease agreement
for “Susan Morgan” was registered to Capri. WULA also
continued to request, as a condition of closing the loan, a
copy of a certificate of occupancy for the Gurnee property.
WULA insisted that $100,000—a sum more than adequate
to cover remaining construction costs—be placed in escrow
for release after the certificate was issued. For his part,
Serfling demanded that $200,000 of the loan proceeds
be dispersed to him directly in order to pay other expenses
relating to the property.
Serfling also provided WULA with the name of a con-
struction company, which, he said, would finish building
the dealership. WULA attempted to contact the company
numerous times but could not reach anyone at the phone
number Serfling supplied. Unsurprisingly, Serfling
stipulated at trial that the company did not exist. Capri
and Serfling also fabricated an insurance company to
satisfy WULA that the Gurnee property was appropri-
ately covered.
In March 2002, WULA was prepared to close on the loan,
and it wired the loan proceeds to the title company in
No. 06-1613 5
Chicago that was handling the closing. Serfling was not
present for the closing, but he sent signed and notarized
copies of the necessary closing documents to the title
company from Las Vegas, where he then lived. Serfling
also sent instructions, including a directive that
$620,000—an amount including the funds earmarked for
the insurance premium, brokers’ fees, and construction
costs—be paid to him directly in addition to the $200,000
that had already been agreed to. WULA rejected this
demand, and Serfling sent new instructions that the
insurance premium could be paid to the (phony) insurer,
the brokers paid directly, and the construction funds
placed in escrow. Finally, the loan closed.
Upon receiving his $200,000 in loan proceeds via wire
transfer, Serfling promptly spent it. He repaid part of a
loan from a friend and settled other personal debts, and
he paid his bill with the business-services provider he
and Capri had used during the loan negotiations. He also
paid a debt to the Rampart Casino in Las Vegas and
opened a line of credit at the Sun Coast Hotel and Casino.
Serfling did not use any of the proceeds for costs associ-
ated with the Gurnee property. Meanwhile, in his capacity
as the “new owner,” Serfling enlisted a former colleague
to be the “caretaker” of the property.
Predictably, when the first loan payments came due,
Serfling did not pay. An investigation was launched and
a grand jury ultimately indicted him for wire fraud and
mail fraud. Serfling pleaded not guilty, and the case was
set for trial. Before trial, he moved in limine to bar the
government from referring to gambling or casinos as
part of its case. After a hearing, the district court ruled
that the government could submit, as evidence of Serfling’s
motive to defraud WULA, evidence of debts existing at the
time of the fraud. However, the court ruled, the govern-
ment could not mention that the debts related to gambling.
As for other amounts Serfling spent at casinos with the
6 No. 06-1613
proceeds of the loans, the district court determined that
those sums were irrelevant to motive and would be
unfairly prejudicial.
In another evidentiary decision, the district court barred
testimony by Serfling’s banking expert. Serfling wanted
the expert to testify that with due diligence, WULA would
have discovered the fraudulent documentation used to
procure the loan. He also hoped that the banking expert
would reinforce his theory of defense, which was that
the fraud had been executed by Capri and Fifth Third
Bank wholly unbeknownst to Serfling. Serfling’s bank-
ing expert would testify that if WULA had engaged in a
reasonable investigation, Serfling would have been alerted
to the attempted fraud in his name before the loan closed.
The district court was doubtful that the subject matter
was suitable for expert testimony but determined in any
event that Serfling essentially aimed to blame the victim
of the fraud, and so the testimony was not appropriate
under United States v. Coffman, 94 F.3d 330, 333-34 (7th
Cir. 1996).
Trial commenced on September 19, 2005, and lasted two
weeks. The jury returned a verdict of guilty on each of the
three counts, and the parties prepared for sentencing. The
probation office prepared a presentence report (“PSR”)
recommending, in relevant part, that Serfling’s offense
level be based on a loss amount exceeding $2.5 million, see
U.S.S.G. § 2B1.1(b)(1)(J), and gross receipts in excess of
$1 million, see id. § 2B1.1(b)(13)(A). Serfling argued that
both figures were calculated improperly, but the district
court adopted the recommendations in the PSR over his
objections. Based on a guidelines imprisonment range of
70-87 months, the district court imposed a 78-month
sentence. Mary Capri, who pleaded guilty to one count
of the indictment, had been sentenced to a prison term of
27 months.
No. 06-1613 7
II.
We begin by addressing the challenges to Serfling’s
convictions. He first argues that his trial was rendered
unfair by the prosecutor’s reference to his involvement
with casinos and gambling, in violation of the district
court’s pretrial ruling on the subject. The challenged
remark occurred while the prosecutor was questioning
Rampart Casino employee Debra Colson about a $4,800
debt that Serfling paid off with the proceeds of the loan.
Despite the district court’s earlier ruling that the nature
of Serfling’s debt could not be discussed, the prosecutor
referred to “Rampart’s Casino” and elicited testimony
about the practice of issuing “markers” that, in the prosecu-
tor’s words “can then be used to spend in the casino.”
Serfling objected to the line of questioning, and the dis-
trict court sustained the objection. The government ex-
plained that it had misinterpreted the court’s ruling on
the motion in limine to mean that, although Serfling’s
other expenditures at casinos were off-limits, the preexist-
ing debt to Rampart’s was relevant to motive. The district
court reiterated that evidence of the debt’s existence was
admissible, but the nature of the debt was not. After
chastising the prosecutor for the error in a sidebar, the
court struck the offending question and testimony from
the record and instructed the jury to disregard it.
In reviewing a charge of prosecutorial misconduct, we
first ask whether the challenged remark by the prosecutor
was improper, and second, whether it prejudiced the
defendant. See United States v. Simpson, 479 F.3d 492,
503 (7th Cir. 2007). Because of the district court’s pretrial
ruling, the prosecutor’s reference to gambling was im-
proper. To determine whether Serfling was prejudiced, we
look to a number of factors, including: (1) whether the
prosecutor misstated the evidence; (2) whether the re-
mark implicated a specific right; (3) whether the de-
fendant invited the response; (4) the efficacy of curative
8 No. 06-1613
instructions; (5) the defendant’s opportunity to rebut; and
(6) the weight of the evidence. See United States v. Hale,
448 F.3d 971, 986 (7th Cir. 2006); United States v. Love,
336 F.3d 643, 648 (7th Cir. 2003). Ultimately, the inquiry
turns on whether the improper statement “so infected
the trial with unfairness as to make the resulting con-
viction a denial of due process.” Darden vs. Wainwright,
477 U.S. 168, 181 (1986) (quotation marks and citation
omitted).
Under the totality of the relevant factors, we conclude
that the improper statement did not result in an unfair
trial. Prompted by Serfling’s timely objection, the district
court immediately halted the prosecutor’s improper line
of questioning and issued a curative instruction to the
jury, the substance of which the court repeated during
its final jury instructions. At that time the court re-
minded the jurors that any testimony or exhibits that it
told the jury to disregard were “not evidence and must not
be considered.” As always, we presume that the jury
followed the court’s instructions, absent evidence of an
“overwhelming probability” that it was unable to do so. See
United States v. James, 487 F.3d 518, 524 (7th Cir. 2007).
Serfling has not met his burden of establishing such a
probability. See United States v. Eberhart, 434 F.3d 935,
939 (7th Cir 2006). Moreover, the evidence of Serfling’s
guilt was substantial, and it is the weight of the evidence
that we have identified as the factor “most important” to
the prejudice inquiry. Love, 336 F.3d at 648. Particularly
damaging was the evidence that Serfling and Capri
prepared and disseminated phony documents such as
the lease agreement, tax returns, and bank statements
in order to secure the loan. Additionally, Serfling stipu-
lated to the invention of individuals and entities that
thwarted WULA’s investigation of the loan application.
Given the curative action taken by the district court and
the amount of evidence of Serfling’s guilt, we conclude
No. 06-1613 9
that the reference to gambling did not so infect the trial
as to deprive Serfling of due process.
Serfling also contends that the prosecution withheld
exculpatory evidence from him in violation of Brady v.
Maryland, 373 U.S. 83, 87 (1963). The evidence consists
of a memorandum written by Bruce Crutcher on behalf
of Fifth Third Bank describing the bank’s efforts to find
a buyer for the Gurnee property. The memorandum
discusses numerous problems with the property and
memorializes the offers the bank had obtained. Crutcher
goes on to advise that, although selling to the property
to the highest bidder would still leave the bank with a
“hideous loss,” the property should be sold as soon as
possible because its value would only depreciate over time.
This memorandum came to light only during sentencing,
when the government submitted it to aid in valuing the
property for purposes of calculating the amount of loss.
Before trial Serfling had requested that the govern-
ment produce any evidence relevant to Fifth Third
Bank’s desire to quickly unload the Gurnee property,
which it had obtained by foreclosing on a construction
loan. Serfling hoped to prove that Fifth Third Bank,
motivated by a desire to shed the property from its portfo-
lio, had perpetrated the fraud in cooperation with Mary
Capri. About a month before the trial started, the govern-
ment notified Serfling that it had received about 10,000
pages of documents produced during a civil litigation
involving Fifth Third Bank. The government informed
Serfling that it had not photocopied the documents
“because they do not appear to be relevant to the trial,”
but stated that they were available for inspection at any
time. The government reminded Serfling about the docu-
ments in another letter about ten days before trial.
Crutcher’s memorandum was among the documents, but
Serfling never inspected them.
10 No. 06-1613
Serfling argues that the memorandum was exculpatory
evidence proving that Fifth Third Bank had a motive to
defraud WULA, and the government was obligated to
produce it before trial. Under Brady, the government
violates its duty to produce exculpatory evidence when
(1) the evidence at issue favors the defendant because
is either exculpatory or impeaching; (2) the government
suppresses the evidence willfully or inadvertently; and
(3) the suppression of the evidence results in prejudice.
United States v. Childs, 447 F.3d 541, 545 (7th Cir. 2006);
United States v. Fallon, 348 F.3d 248, 251-52 (7th Cir.
2003).
Even if we agreed that the memorandum tends to
support Serfling’s case,1 the government did not sup-
press it. The government “suppresses” evidence for pur-
poses of Brady if it fails to disclose the evidence in time
for the defendant to use it in his defense, and the evid-
ence was not otherwise available to the defendant through
the exercise of reasonable diligence. See Harris v. Kuba,
486 F.3d 1010, 1015 (7th Cir. 2007). In this case, the
government made the memorandum available for inspec-
tion—a fact inconsistent with suppression. See United
States v. Knight, 342 F.3d 697, 707 (7th Cir. 2003) (con-
cluding that no suppression occurred where supposed
Brady material was “part of the evidence that the govern-
ment had invited the defendants to inspect and copy
before trial”). Serfling did not take even a cursory look
at the documents, although his defense was based on the
culpability of Fifth Third Bank and others. The uncritical
reliance on the government’s characterization of the
1
This proposition is dubious at best. Exculpatory evidence
supports a claim of innocence to the crime charged. Even if the
memorandum inculpated Fifth Third Bank in a fraud scheme, it
does nothing to suggest that Serfling is any less culpable for
the fraudulent acts he committed.
No. 06-1613 11
documents as “not relevant” hardly qualifies as reasonable
diligence. See United States v. Wright, 218 F.3d 812, 813
(7th Cir. 2000) (Where government told defense counsel
about evidence before trial, “that defense counsel did not
follow up by obtaining more details can’t be treated as
a constitutional violation by the prosecutor”); United
States v. Senn, 129 F.3d 886, 893 (7th Cir. 1997). Serfling
also hints that the government did not disclose the materi-
als in a timely manner, but this argument fails because
he never asked for a continuance to review the docu-
ments; indeed he did not indicate in any way that he
ever intended to inspect them. See United States v. War-
ren, 454 F.3d 752, 760-61 (7th Cir. 2006).
In his final challenge to his convictions, Serfling argues
that he was prejudiced by the district court’s refusal to
let his banking expert testify that reasonable investiga-
tion by WULA would have prevented the loan from closing.
As the district court determined, Serfling’s argument
is foreclosed by our decision in United States v. Coffman,
94 F.3d 330, 333-34 (7th Cir. 1996), in which we held that
the perpetrator of a fraud may not defend himself by
blaming the victim for being duped. See also United States
v. Thomas, 377 F.3d 232, 243 (2d. Cir. 2004) (collecting
cases). Serfling suggests that the expert’s testimony
was meant to serve the additional purpose of establishing
that reasonable action by WULA would have alerted him
to a fraud of which he was otherwise completely ignorant.
But the expert’s testimony would do little to support
Serfling’s theory that he was wholly unaware of the fraud.
Serfling’s intent is not an appropriate subject for expert
testimony, and Serfling does not claim that the expert
had personal knowledge regarding what Serfling knew,
nor when. Therefore, the district court did not abuse its
discretion by excluding the expert witness.
Having concluded that Serfling received a fair trial, we
turn to the arguments about sentencing. First Serfling
12 No. 06-1613
argues that the amount of the loss and the gross re-
ceipts he obtained were improperly calculated, resulting in
18-level and 2-level upward adjustments to his base
offense level, respectively. Both calculations are findings
of fact that we review for clear error. See United States v.
Al-Shahin, 474 F.3d 941, 950 (7th Cir. 2007); United States
v. Frith, 461 F.3d 914, 917 (7th Cir. 2006).
Serfling maintains that the loss amount of $6.75 million
calculated in the PSR and accepted by the district court
was improperly based on the gross rather than the net
loan proceeds, and that it fails to account for the “below
fair market value sale of the Gurnee property.” We are
not persuaded by either argument. To estimate the
amount of loss, the district court properly subtracted the
price WULA ultimately obtained for the collateral
($5 million) from the amount of loan proceeds ($11.75
million). See U.S.S.G. § 2B1.1(b)(1)(J) & cmt. n.2(E)(ii)2;
United States v. Lane, 323 F.3d 568, 585 (7th Cir. 2003).
Serfling’s contention that WULA is responsible for the
size of the loss because it sold the Gurnee property at a
fire-sale price is misguided. He bases his assertion that
the price was unreasonably low on the appraisal of
$15 million he obtained for the property two years be-
fore WULA sold it for $5 million. Serfling conveniently
ignores that he obtained that appraisal by providing
Schmidt, the appraiser, with a fraudulent lease guarantee-
ing monthly rental payments of $125,000 from Ford. The
district court appropriately relied on the sale price as
evidence of the property’s value. See United States v.
Radziszewski, 474 F.3d 480, 487 (7th Cir. 2007).
Serfling’s second challenge to the loss calculation is
trivial. He argues that the value of the property should
have been subtracted from a minuend of $11,515,781 (the
2
We use the November 2001 Sentencing Manual.
No. 06-1613 13
loan amount minus costs, fees, and interest), instead of
$11.75 million. But the difference between the two figures
is negligible; either results in a loss amount exceeding
$2.5 million and the attendant 18-level adjustment.
U.S.S.G. § 2B1.1(b)(1)(J).
Serfling also contends that it was error to include in the
gross receipts he derived from his fraud the value of
the Gurnee property because he did not gain control or
ownership of the property as a result of the transaction.
The 2-level adjustment at issue applies when a defendant,
individually, “derived more that $1,000,000 in gross
receipts from one or more financial institutions.” U.S.S.G.
§ 2B1.1(b)(12)(A) & cmt. n.9. Serfling argues that the
amount of gross receipts must be capped at the amount of
loan proceeds disbursed directly to him: $200,000.
The district court, agreeing with the recommendation
in the PSR, concluded that the gross receipts exceeded
$1 million because Serfling obtained control of the Gurnee
property upon the loan’s closing. The court found persua-
sive the decision of the Second Circuit in United States v.
Mingo, 340 F.3d 112, 114 (2d. Cir. 2003). In that case, the
court included in gross receipts the value of real property
secured with mortgage loans obtained through false
representations. The court rejected the argument that
because the defendant did not have full equity in the
properties, which were mortgaged, the value of the liens
should be subtracted from the property values for pur-
poses of determining gross receipts. See id. The court
concluded that the plain language of the guideline re-
quires the inclusion of the property’s actual value.
Mingo, while instructive, is not entirely on point because
Serfling does not argue the value of the property should
be calculated in a manner that offsets outstanding liens.
He argues that he never owned the property; the defen-
dant’s ownership of the property was undisputed in Mingo.
14 No. 06-1613
Serfling contends that he did not “derive property” from
the deal because he had a significant preexisting interest
in the property. This assertion is simply not borne out
by the record. Somewhat inconsistently, Serfin also
asserts that he had no working keys to the would-be
dealership, so he could not be the property’s owner.
Notably, Serfling does not dispute the government’s
assertion that Serfin Trust took title to the property at
closing, nor does he suggest who else did control the
property. Given the evidence in the record, we cannot
conclude that the district clearly erred in concluding
that Serfling became the owner of the property upon the
closing of the loan. The $200,000 Serfling received in cash
combined with the value of the property (irrespective of
liens) safely exceed $1 million. Serfling has not raised, and
has thereby waived, any argument that proceeds to
Serfin Trust should not count toward his “individual” gross
receipts, see United States v. Castellano, 349 F.3d 483,
486-87 (7th Cir. 2003). Accordingly, we uphold the ap-
plication of the adjustment.
Finally, Serfling argues that his sentence is unreason-
ably high. The 78-month sentence is within the guidelines
range that we have just concluded was properly calculated,
and so we presume that it is reasonable. United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); see Rita v.
United States, ___ U.S. ___, 127 S.Ct. 2456, 2462-63,
(2007). Serfling may rebut the presumption by showing
that his sentence is unreasonably long in light of specific
factors under § 3553(a). See Mykytiuk, 415 F.3d at 608.
The sole factor that Serfling points to as compelling a
lower sentence is § 3553(a)(6), which requires a sentenc-
ing court to consider “the need to avoid unwarranted
sentence disparities among defendants with similar
records who have been found guilty of similar conduct.”
Serfling contends that an unwarranted disparity exists
because he received a harsher sentence than Mary Capri
No. 06-1613 15
despite her more extensive criminal history and the fact
that she “admitted her intimate involvement in the
fraudulent scheme.”
We held in United States v. Boscarino, 437 F.3d 634 (7th
Cir. 2006), that a sentence within a properly calculated
guidelines range “cannot be treated as unreasonable by
reference to § 3553(a)(6).” Id. at 638; see United States v.
Babul, 476 F.3d 498, 501-02 (7th Cir. 2007). In Boscarino,
we rejected the argument that the difference between
the defendant’s sentence and that of his codefendant,
who had pleaded guilty and assisted the government,
amounted to an unwarranted disparity. See 437 F.3d at
638. We emphasized that valid reasons exist for sentencing
similar defendants differently, and only unwarranted
disparities are problematic. Id. at 638 (“[A] sentencing
difference is not a forbidden ‘disparity’ if it is justified
by legitimate considerations.”); see United States v.
Duncan, 479 F.3d 924, 929 (7th Cir. 2007).
Serfling does not even mention Boscarino or the other
cases that squarely reject the argument he makes. Nor
does he explain why the disparity between his sentence
and Capri’s is unwarranted rather than justified by
legitimate considerations. In fact, he notes her lower
guidelines range (46 to 57 months), her acceptance of
responsibility, and the district court’s finding that “extraor-
dinary” family circumstances weighed in favor of a below-
guidelines sentence. These factors suggest that the
difference is a natural outgrowth of a sentencing scheme
based on individualized factors. See United States v.
Newsom, 428 F.3d 685, 689 (7th Cir. 2005) (“[O]ne needs
to know more than the crime of conviction and the
total length of the sentence to evaluate disparities; the
specific facts of the crimes and the defendant’s individual
characteristics are also pertinent.”). Serfling’s arguments
are directed more to the unreasonableness of Capri’s
16 No. 06-1613
sentence than his own, but if there is any argument that
Capri’s sentence is too low, it would be for the government,
not Serfling, to make. Serfling has not come close to
rebutting the presumption that his own within-guide-
lines sentence is reasonable.
III.
Serfling has not demonstrated error with respect to the
district court’s evidentiary decisions, and he has not
shown that any prejudice resulted from the prosecutor’s
improper remark at his trial. Furthermore, his sentencing
arguments lack merit. We therefore AFFIRM the con-
victions and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-5-07