USA v. Scott Serfling,  06-1613.  Scott Serfling and co-defendant 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 district court entered judgment against Serfling and sentenced him to 78 months’ imprisonment, three years’ supervised release, and restitution in the amount of $6.75 million.

Among other trial and sentencing issues, Serfling challenges as unreasonable the length of his prison term as compared to Capri’s.

In short, Serfling argues that his sentence is unreasonably 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 sentencing 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 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 co-defendant, who had pleaded guilty and assisted the government, amounted to an unwarranted disparity. 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 "extraordinary" 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 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-guidelines sentence is reasonable.

We therefore AFFIRM the convictions and sentence.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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