United States v. Serfling, Scott

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