     Case: 16-51427   Document: 00514459288        Page: 1   Date Filed: 05/04/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals

                                    No. 16-51427
                                                                         Fifth Circuit

                                                                       FILED
                                                                    May 4, 2018

UNITED STATES OF AMERICA,                                         Lyle W. Cayce
                                                                       Clerk
             Plaintiff - Appellee

v.

BOBBY DWAYNE FILLMORE, also known as Jango,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Bobby Dwayne Fillmore pled guilty to conspiracy to maintain a chop
shop in the Dallas, Texas, area. The district court issued a within-Guidelines
sentence of 51 months based partly on a two-level enhancement for being “in
the business” of receiving and selling stolen property. We conclude Fillmore
was not “in the business,” and thus we VACATE in part and REMAND for re-
sentencing. As to other rulings, we AFFIRM in part and DISMISS in part.


              FACTUAL AND PROCEDURAL BACKGROUND
      Bobby Dwayne Fillmore was a soldier in the United States Army, serving
on active duty as a food service inspector while stationed at Fort Hood, Texas.
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In 2014 and 2015, Fillmore conspired with other individuals to steal
motorcycles in various cities throughout Texas.       Texas state investigators
obtained a warrant to search Fillmore’s residence, where they discovered at
least one stolen motorcycle. Fillmore pled guilty to conspiracy to maintain a
chop shop, which is a building where one or more persons receive, conceal,
disassemble, or reassemble stolen vehicles. See 18 U.S.C. § 2322(b).
      Although Fillmore admitted to stealing only a single motorcycle in the
factual basis for his plea, the presentence report (“PSR”) nonetheless described
how over the course of two years, he stole a number of motorcycles throughout
Texas and then transported them to a location in Dallas, where his co-
conspirators would alter the Vehicle Identification Numbers (“VIN”).
Following transport of the stolen motorcycles to Dallas, it appears that
Fillmore took two varying courses of action. He either sold the motorcycles
directly to his co-conspirators at the Dallas chop shop, or he would have his co-
conspirators alter the VINs and return the motorcycles to his possession upon
completion of the work.
      The district court accepted Fillmore’s guilty plea. Under the Sentencing
Guidelines, conspiracy to maintain a chop shop carries a base level of eight.
U.S.S.G. § 2B6.1(a). In adopting the findings of the PSR, the district court
applied three enhancements to the base level, two of which Fillmore now
challenges on appeal. Fillmore declines to challenge a ten-level enhancement
based on the value of the motorcycles involved, which exceeded $219,000. The
second enhancement added two levels under Section 2B6.1(b)(2) for being “in
the business of receiving and selling stolen property.” In addition, the court
added two levels under Section 3B1.1(c) for being “an organizer, leader,
manager, or supervisor” in a criminal activity.
      Fillmore objected to the PSR and requested a downward departure in
light of his military career, which included 18 years of active duty service. The
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district court denied his request and, based on a total offense level of 22 and a
criminal history category of I, Fillmore’s advisory Guidelines range was 41 to
51 months of imprisonment.        The district court sentenced Fillmore to 51
months of imprisonment, three years of supervised release, and restitution in
the amount of $219,175.43. Fillmore timely appealed.


                                  DISCUSSION
        Fillmore raises four issues on appeal. First, he argues that the district
court clearly erred in finding that he was “in the business of receiving and
selling stolen property” under Section 2B6.1(b)(2). Second, he argues that the
district court clearly erred in enhancing his sentence for a leadership role in
the offense pursuant to Section 3B1.1(c). Third, he argues that the district
court clearly erred in failing to grant his request for a downward departure.
Finally, he challenges the substantive reasonableness of the sentence.


   I.      “In the business” enhancement
        Section 2B6.1(b)(2) provides for a two-level enhancement “[i]f the
defendant was in the business of receiving and selling stolen property.”
§ 2B6.1(b)(2).   Fillmore objected in the district court to the enhancement.
When a defendant preserves an issue as Fillmore did, our review of “factual
findings under the Guidelines [is] for clear error.” United States v. Mackay, 33
F.3d 489, 492 n.3, 496 (5th Cir. 1994). Findings are not clearly erroneous if
they are plausible based on the record as a whole. United States v. Ochoa-
Gomez, 777 F.3d 278, 282 (5th Cir. 2015). A district court may base its findings
on information having sufficient indicia of reliability to support its probable
accuracy, such as unrebutted information contained in a PSR. Id.
        Although the Section 2B6.1 enhancement refers specifically to motor
vehicle-related crime, the Guidelines contain an identical version of the
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enhancement in Section 2B1.1(b)(4) for all other forms of theft.             See
§ 2B1.1(b)(4). Indeed, the Section 2B6.1 commentary directs courts to the
commentary for Section 2B1.1, the more commonly discussed version of the “in
the business” enhancement. § 2B6.1 cmt. n.1. Fillmore argues that in our line
of cases analyzing Section 2B1.1, we have held that the enhancement “cannot
apply to a defendant who merely sells property that he himself has stolen.”
Under such a standard, he argues that the PSR demonstrates that he was in
the business of selling motorcycles that he originally stole and is therefore not
subject to the enhancement.
      When interpreting Section 2B1.1, “our approach views the enhancement
as a punishment for fences, people who buy and sell stolen goods, thereby
encouraging others to steal, as opposed to thieves who merely sell the goods
which they have stolen.” United States v. Sutton, 77 F.3d 91, 94 (5th Cir. 1996).
In reaching this interpretation, we adopted the reasoning of a Seventh Circuit
opinion denying applicability of the enhancement when “the defendant had
stolen property and then later resold it himself.” United States v. Esquivel,
919 F.2d 957, 960 (5th Cir. 1990) (citing United States v. Braslawsky, 913 F.2d
466, 468 (7th Cir. 1990)). In Esquivel, we held that “[i]t is because someone
else stole the shoes sold by Esquivel that the commission of other crimes was
encouraged and that the fencing operation falls within the intended purview
of” the enhancement. Id.
      Here, the parties focus on the language of a single paragraph in the PSR:
      The witness stated that the motorcycles brought to Estart Motors
      were “cut” and the VINs were changed using VINs from “donor or
      salvage” frames and parts from the stolen motorcycles were
      swapped out, but this became too time consuming. The witness
      purchased ten full motorcycles from Fillmore for $1,500 each. The
      witness obtained the money to pay Fillmore from another
      individual. The witness put stolen motorcycle parts on Fillmore’s
      personal motorcycle with Fillmore’s knowledge. The witness

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      reported swapping out VINs on five other motorcycles for Fillmore
      that were given back to Fillmore.
Fillmore acknowledges that he was in the business of selling stolen property,
as the PSR makes clear.         He does, however, challenge the Government’s
contention that he “received” stolen property under Section 2B6.1(b)(2)
because five motorcycles were “given back” to him following VIN replacement.
      There are ambiguities in the key statement that motorcycles were “given
back to Fillmore.” The district court did not articulate an interpretation. We
find the most reasonable understanding to be that Fillmore stole those five,
allowed someone else to attach new VINs on them, and then received them
back. The PSR does not suggest these five motorcycles were sold to the person
who changed the VINs, then sold back to Fillmore. Accepting that meaning,
we need to decide whether a thief is subject to the Section 2B6.1(b)(2)
enhancement when he temporarily transfers custody of stolen goods to another
co-conspirator to make minor modifications, then receives the property back
with the intent to sell the stolen and altered items to someone else. We have
already held that a defendant is not subject to the enhancement when he sells
property that he originally stole because the enhancement is for “those in the
business of receiving and selling property stolen by others.” Mackay, 33 F.3d
at 496.   In Mackay, application of the enhancement turned on “sufficient
evidence on which the district court could find that Mackay bought the backhoe
from [another person], knowing it to be stolen, before transporting it to Texas”
for resale. Id. at 497.
      Here, the PSR indicates that Fillmore either sold the motorcycles he
stole to his co-conspirators or received their assistance in removing the VINs,
leaving the motorcycles in their possession while the work was being
completed.   The Government cites three cases in arguing that such facts
subject Fillmore to the enhancement. We will examine all three.

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      In one, the defendant was a middleman in a conspiracy to buy and sell
stolen cars. Sutton, 77 F.3d at 92. He took “orders for particular vehicles,
contact[ed] people to steal them, and then deliver[ed] the stolen vehicles to the
buyers.” Id. We held that the “in the business” enhancement is focused on
those who “buy and sell stolen goods,” meaning that selling stolen property is
not sufficient. Id. at 94. Sutton’s role as a middleman, having not stolen the
cars himself, triggered the enhancement.        Id.   Here, Fillmore stole the
motorcycles himself, and there is no indication in the PSR that he purchased
motorcycles stolen by others.
      In an unpublished opinion, we discussed a defendant who “was a member
of a large and sophisticated conspiracy engaged in stealing vehicles, altering
their VINs, and selling stolen vehicles and their parts to innocent purchasers.”
United States v. Rollins, No. 93-1444, 1994 WL 14068, at *2 (5th Cir. Jan. 3,
1994). Citing this language from the opinion, the Government attempts to
derive the rule that membership in such a conspiracy is sufficient to trigger
the “in the business” enhancement. Such a reading of Rollins would conflict
with our holding that the enhancement applies to someone who buys stolen
goods in order to later resell them — it does not apply to the original thief who
sells to such a middleman. See Sutton, 77 F.3d at 94. Under the Government’s
reading of Rollins, the original thief who sold the stolen property to a fence
would be subject to the same enhancement as the fence simply because he was
a cog in the overall conspiracy machine.      Such a reading contradicts our
precedent.   A middleman, as opposed to the original thief, receives the
enhancement because he encourages thieves to continue their thievery by
providing a market for stolen goods. Id.
      Notwithstanding the existence of a larger conspiracy in Rollins, we held
that the defendant properly received the enhancement because he personally
qualified as a fence of stolen property. See 1994 WL 14068, at *2. His role in
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the conspiracy was to act as the middleman similar to the defendant in Sutton.
Id. He knowingly purchased stolen vehicles for resale. Id. Rollins therefore
aligns with our precedent proscribing application of the enhancement for
defendants who sell the goods they originally stole.
         A case from the Eighth Circuit does support the Government’s
interpretation. See United States v. Borders, 829 F.3d 558, 569 (8th Cir. 2016).
The court applied the “in the business” enhancement, noting that “[e]ven if [the
defendant] was not himself a fence, he personally participated in [the fence’s]
activities.” Id. “He often scouted and stole trucks” with the fence’s employee,
“stored stolen property at [the fence’s] storage facility,” and “filled [the fence’s]
‘shopping lists.’” Id. That holding is inconsistent with our interpretation of
the reach of the enhancement. Our precedent requires that a recipient of the
enhancement be a fence. Esquivel, 919 F.2d at 960.
         The enhancement does not apply when “the record [is] clear that the
defendants themselves stole the goods they sold.” Mackay, 33 F.3d at 497. The
record does not support that Fillmore sold or attempted to sell stolen property
that he himself did not first steal. His temporary relinquishment of possession
of five motorcycles he stole, allowing someone else to modify them to facilitate
their sale, then receiving them back does not convert him into someone who
receives stolen property.        The district court erred in applying a two-level
enhancement under Section 2B6.1(b)(2). We defer consideration of the remedy
for the violation until we consider Fillmore’s other arguments.


   II.     Role in the offense
         Fillmore argues that the district court clearly erred in enhancing his
sentence for a leadership role in the offense. Section 3B1.1(c) provides for a
two-level enhancement if the defendant is an organizer, leader, manager, or
supervisor of at least one other participant in any criminal activity. § 3B1.1(c)
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& cmt. n.2. Here too, Fillmore preserved the argument. We therefore review
the district court’s finding regarding Fillmore’s role in the offense for clear
error. United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006). Such a finding
need only be supported by a preponderance of the evidence. United States v.
Puig-Infante, 19 F.3d 929, 944 (5th Cir. 1994).        “When faced with facts
contained in the PSR that are supported by an adequate evidentiary basis with
sufficient indicia of reliability, a defendant must offer rebuttal evidence
demonstrating that those facts are ‘materially untrue, inaccurate or
unreliable.’” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (quoting
United States v. Huerta, 182 F.3d 361, 364–65 (5th Cir. 1999)).
      The Guidelines provide the following factors for consideration in
determining whether a defendant had a leadership or organizational role:
      the exercise of decision making authority, the nature of
      participation in the commission of the offense, the recruitment of
      accomplices, the claimed right to a larger share of the fruits of the
      crime, the degree of participation in planning or organizing the
      offense, the nature and scope of the illegal activity, and the degree
      of control and authority exercised over others.

§ 3B1.1 cmt. n.4. Here, the PSR contained statements by a co-defendant
describing how Fillmore recruited and paid the co-defendant to scout potential
theft targets and otherwise assist with the theft. Although Fillmore objected
to the use of the co-defendant statements, he failed to offer any evidence to
demonstrate that the statements were “materially untrue, inaccurate or
unreliable.” Harris, 702 F.3d at 230 (citation omitted).
      We have previously held that a Section 3B1.1(c) enhancement was
proper when evidence showed that the defendant recruited accomplices and
was involved in planning and organizing the offense. See United States v.
Peters, 978 F.2d 166, 170 (5th Cir. 1992). As such, the district court did not
clearly err in applying the Section 3B1.1(c) enhancement.

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   III.     Downward departure
         Fillmore next argues that the district court clearly erred by denying a
downward departure under Section 5H1.11 based on his prior military service.
We lack jurisdiction, though, to review a sentencing court’s refusal to grant a
downward departure unless the “court based its decision upon an erroneous
belief that it lacked the authority to depart.” United States v. Alaniz, 726 F.3d
586, 627 (5th Cir. 2013) (citation omitted). The record does not suggest the
district court based its decision on an erroneous belief that it lacked the
authority to depart. We therefore do not have jurisdiction to review this issue.


   IV.      Substantive reasonableness of the sentence
         Finally,   Fillmore   argues   that   his   sentence    was    substantively
unreasonable as it was greater than necessary to achieve the goals of
sentencing under 18 U.S.C. § 3553(a). Our review of that issue is a two-step
process. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009).
The first step we have already taken; namely, we have determined that the
district court committed a significant procedural error by making an improper
calculation of the Guidelines range. Id. Such an error requires a remand for
resentencing “unless the proponent of the sentence establishes that the error
‘did not affect the district court’s selection of the sentence imposed.’”           Id.
(quoting Williams v. United States, 503 U.S. 193, 203 (1992)). Only if the error
was harmless do we take the second step of analysis which is to consider the
substantive reasonableness of the sentence. Id. Harmlessness means “the
district court would have imposed the same sentence absent the Guidelines
error.” Id. at 753–54.
      As to Fillmore, the erroneous Guidelines range was 41 to 51 months
based on a total offense level of 22. The district court held that “all the facts
in this case suggest that a sentence at the high end of the Guidelines is
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appropriate” and imposed a sentence of 51 months. Under a total offense level
of 20, the Guidelines range is 33 to 41 months. Because the district court
indicated it was reaching its decision based on the Guidelines calculation, “we
cannot conclude that ‘the district court had [the 51-month] sentence in mind
and would have imposed it, notwithstanding the error made in arriving at the
defendant’s [G]uideline range.’” Id. at 754 (quoting United States v. Huskey,
137 F.3d 283, 289 (5th Cir. 1998)). A remand for re-sentencing is therefore
required.
      AFFIRMED in part, DISMISSED in part, VACATED in part, and
REMANDED for re-sentencing.




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