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                                                                           [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 14-12417
                               ________________________

                        D.C. Docket No. 1:13-cr-20557-KMW-3



UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

                                            versus

ALEXANDER DIMITROVSKI,

                                                          Defendant - Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                       (April 2, 2015)

Before HULL, BLACK and MELLOY, * Circuit Judges.


BLACK, Circuit Judge:
       *
          The Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit,
sitting by designation.
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       Defendant Aleksander Dimitrovski appeals his sentence, imposed after

pleading guilty to one count of receiving, possessing, and selling stolen goods in

violation of 18 U.S.C § 2315. Dimitrovski contends the district court erred in

applying a two-level enhancement under U.S.S.G. § 2B1.1(b)(14)(B), which

applies “[i]f the offense involved an organized scheme to steal or to receive . . .

goods or chattels that are part of a cargo shipment,” 1 because his offense involved

only a single transaction of stolen cargo. We affirm.

                                    I. BACKGROUND 2

A.     June 26, 2013 – A cargo shipment is stolen at a truck stop

       On June 26, 2013, an eighteen-wheeler tractor-trailer transporting a

shipment of L’Oreal brand beauty products, including hair-color and makeup, was

stolen from a truck stop in Antioch, Tennessee. The shipment was en route to a

customer warehouse in Chattanooga, Tennessee and had originated from a L’Oreal

distribution facility in Streetsboro, Ohio. The shipment’s two invoices showed it




       1
        Prior to November 1, 2007, the organized scheme enhancement applied only if the
scheme involved stolen vehicles and vehicle parts. See United States Sentencing Guidelines
App. C. In response to concerns over increased instances of organized cargo theft operations, the
Guidelines Commission expanded the organized scheme enhancement to cover cargo theft.
       2
         Because Dimitrovski did not proceed to trial, these facts derive from the factual proffer
and the offense conduct section of Dimitrovski’s Presentence Investigation Report (PSI). The
offense conduct section of Dimitrovski’s PSI contained information gathered from, among other
places, post-arrest interviews of Dimitrovski and his two codefendants, Jorge Brache and Justo
Aranda Maytin.

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was carrying thirty-four pallets 3 of L’Oreal goods. The driver reported he went

inside the truck stop to take a shower and came back out to discover his tractor-

trailer was gone.

       Sometime on or before Friday, July 12, 2013, Dimitrovski, who owns a

trucking company called RUS Corporation, obtained $10,000 by factoring invoices

with Capital Depot.4

B.     July 12, 2013 – Dimitrovski purchases and arranges sale of the load

       The following events occurred on Friday, July 12, 2013. Dimitrovski used

the $10,000 cash obtained from Capital Depot to purchase the stolen load of

L’Oreal products at a truck stop in Illinois. 5 Various itinerant individuals sold

merchandise at the truck stops every day. The individual who sold the L’Oreal

products to Dimitrovski was an American, whose name Dimitrovski did not know


       3
         A pallet is “a portable platform of wood, metal, or other material designed for handling
by a forklift truck or crane and used for storage or movement of materials and packages in
warehouses, factories, or transport vehicles.” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY (1976).
       4
         Capital Depot is an invoice factoring company that pays businesses cash in exchange
for accounts receivables. Capital Depot, http://www.capitaldepotfactoring.com/ (last visited
Mar. 5, 2015). Initially, Dimitrovski told the agents he had obtained the $10,000 from a friend.
When pressed for the identity of his friend, however, he admitted the cash came from Capital
Depot. Dimitrovski clarified he said a friend because the two ladies who take care of his account
at Capital Depot were friends of his.
       5
          During his interview, Dimitrovski told agents he purchased the load the “preceding
Friday.” It is clear from the record this meant Friday, July 12, 2013. The probable cause
affidavit was signed Friday, July 19, 2013, and referred to the interviews. Dimitrovski and the
others were arrested on Thursday, July 18, 2013. Therefore, the interviews must have occurred
on one of those two days. In either case, the “preceding Friday” is July 12, 2013.

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and whom Dimitrovski had never met before. The American did not tell

Dimitrovski where he obtained the L’Oreal products.

       Dimitrovski thought $10,000 for the load was cheap and believed the

products were stolen. However, he thought selling the load was “the American

Dream” that would make him rich and solve his financial problems. 6 Dimitrovski

transferred the load from the American’s trailer into his own trailer. He then

brought the load to his company’s truck yard in Willowbrook, Illinois.

Dimitrovski opened a few boxes and inspected the products while checking them

against the manifest given to him by the American. He also conducted Google

searches to ascertain the value of the L’Oreal products.

       That same day, 7 Dimitrovski dispatched his associate Jorge Brache to drive

to the truck yard in Willowbrook, Illinois, with an empty trailer. Dimitrovski and

Brache met on the job as truck drivers and had known each other approximately

five to seven years. Dimitrovski told Brache about the L’Oreal load.8 Brache had

       6
         Dimitrovski told agents he initially bought the load for his wife who owns a beauty
salon, but she did not need or want the L’Oreal products so he had to resell them elsewhere.
       7
        Brache stated this occurred the “previous Friday,” which the record reflects was July 12,
2013. See fn. 5, supra.
       8
          According to Brache, he did not know from whom Dimitrovski purchased the load and
only learned after he was arrested that Dimitrovski purchased the load for $10,000. Brache’s
story is that when he arrived at the yard, he unhooked his trailer and drove his tractor under a tree
while the trailer was being loaded from another trailer. Dimitrovski returned the trailer to Brache
already loaded. The trailer was then sealed, presumably before Brache ever saw what was inside
of it. Brache also said Dimitrovski gave him a bill of lading for the shipment; however, Brache
could not remember who was the shipper or to whom he was supposed to deliver the load.

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a buyer in Miami, Justo Aranda Maytin. Still on Friday, July 12, 2013,9 Brache

contacted Maytin and told him he was selling a stolen load of cosmetics. Brache

did not tell Maytin specifically what the load contained. The L’Oreal load was

transferred into Brache’s tractor-trailer (which was actually owned by RUS

Corporation). Brache then transported the L’Oreal load to a truck yard in Opa-

locka, Florida, a city just outside Miami. 10 Dimitrovski did not accompany Brache

because Dimitrovski had another cargo load 11 to take down to Miami.

C.     July 14, 15, and 16, 2013 – Brache and Dimitrovski arrive in Miami, meet
       the buyer, and negotiate the sale

       Dimitrovski and Brache both arrived in Opa-locka on Sunday, July 14, 2013.

Brache arrived first; Dimitrovski arrived shortly thereafter and would spend the

night at Brache’s home in Opa-locka. That day, Maytin visited Brache at Brache’s

home. Brache gave Maytin a 32-page manifest listing the contents of the load by

the pallet. Brache told Maytin the load was stolen but did not say where the load

came from. Maytin gleaned from the manifest the load had come from Tennessee.

Initially, Maytin had no interest in getting involved in the load. However, “his

       9
           Maytin’s interview states Brache contacted him the “previous Friday.” See fn. 5, supra.
       10
          According to Brache, he had just arrived in Opa-locka and was going to deliver the
load when Dimitrovski called him and told him not to. When Dimitrovski arrived, he told
Brache he was looking for someone to buy the load. Then, “[b]y pure coincidence,” Brache ran
into Maytin in a restaurant in Hialeah, at which point he offered the load to Maytin to see if he
could sell it.
       11
            This cargo load was apparently legal.

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drinking got in the way of his better judgment,” and Maytin decided he would try

to sell it.

        On July 15, 2013, an informant told Federal Bureau of Investigation (FBI)

agents Maytin had contacted him and offered to sell the stolen L’Oreal products.

The informant was a Chilean male with whom Maytin had served time in the

Miami-Dade stockade for drinking and driving charges. Maytin told the informant

the products were stolen.

        On July 16, 2013, Maytin took the informant to the truck yard in Opa-locka,

Florida, where the products were being kept in the RUS Corporation tractor-trailor

Brache had driven down from Illinois. 12 The informant looked inside the trailer

and observed multiple pallets of L’Oreal products that filled up most of the trailer’s

fifty-three feet.13 The shipping labels on the products matched the description and

unique product codes of the stolen products. Dimitrovski and Brache also attended

this meeting. They negotiated with the informant, initially requesting $250,000

cash for the entire load, but ultimately agreeing to sell the load for $170,000.14



        12
        To be clear, this was not the same tractor-trailer that had been stolen at the truck stop in
Tennessee.
        13
          Although Maytin was brokering the L’Oreal load and led the informant to the truck
yard, he claimed he never actually laid eyes on it because he “preferred to stay away.”
        14
         According to Brache, he knew nothing about the negotiations for the load with the
Chilean and did not know the arrangement between Maytin and Dimitrovski. He also did not
know anything about the negotiated price.

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D.     July 17, 2013 – Maytin and the buyer discuss how the load of stolen goods
       would be transported to Colombia

       The next day, on July 17, 2013, Maytin, the informant, and another

unidentified individual met at a restaurant in Hialeah, Florida, to discuss how the

load of stolen goods would be transported to Colombia. Later that day, the

informant made controlled, recorded phone calls to Maytin to discuss whether a

container into which the load would be transferred had arrived at the truck yard.

During one of the calls, the informant asked Maytin what time the port closed.

Maytin responded to the effect of “you tell your people that you’re turning a stolen

load into a legal one.” On a later phone call that day, Maytin told the informant to

meet him at the truck yard around 9:00 a.m. the next day.

E.     July 18, 2013 – Dimitrovski discusses payment arrangements and offers to
       bring more loads in the future

       On July 18, 2013, Maytin and Brache met with the informant at the Opa-

locka truck yard while FBI agents surveilled the meeting, both visually and

aurally. 15 Agents observed Maytin and the informant arrive in a car and then

observed Maytin pace back and forth holding papers in his hands. During the

meeting, the informant asked Brache if the trailer was legal. Brache told him it

was, and also stated the load of stolen goods had been moved between various

       15
           Although transcripts of several recordings were provided in discovery to Dimitrovski
and his codefendants, they were never introduced as exhibits or otherwise entered into the
district court record.

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containers or trailers several times and had been to many places. Maytin advised

the shipping labels on the pallets would need to be removed. The informant then

asked Brache who he should pay, Brache or Dimitrovski, and Brache stated the

informant should pay Maytin a broker’s fee and could pay either Brache or

Dimitrovski for their share.

          Shortly thereafter, Dimitrovski, wearing latex gloves, arrived at the tractor-

trailer. Dimitrovski told the informant he could bring more loads in the future.

The informant then excused himself to go get the money. After the informant left

the scene, the officers and agents placed Maytin, Brache, and Dimitrovski under

arrest.

F.        Dimitrovski’s guilty plea, the PSI, and the objection

          On February 7, 2014, Dimitrovski pled guilty to count three of a three-count

indictment charging him with receiving, possessing and selling stolen goods, in

violation of 18 U.S.C § 2315. In preparing the PSI, the probation officer

calculated a base offense level of six pursuant to U.S.S.G. § 2B1.1(a)(2).

Dimitrovski received a ten-level enhancement pursuant to § 2B1.1(b)(1)(F)

because the loss was more than $120,000 but less than $200,000. 16 Dimitrovski

also received a two-level enhancement pursuant to § 2B1.1(b)(14)(B) because the


          16
         According to the government, L’Oreal indicated the total retail value of the products
was $578,908. Its estimated wholesale value, however, was $163,120.

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offense involved an organized scheme to steal goods or chattels that are part of a

cargo shipment. Finally, Dimitrovski received a three-level downward adjustment

for his acceptance of responsibility pursuant to § 3E1.1(a) and (b). These

adjustments resulted in a total offense level of fifteen. Dimitrovski had no criminal

history, resulting in a criminal history category of I. Based on a total offense level

of 15 and a criminal history category of I, Dimitrovski’s guideline range was 18-24

months.

       Dimitrovski’s only objection to the PSI was to paragraph 28, the imposition

of the § 2B1.1(b)(14)(B) organized scheme enhancement. 17 In his objection,

Dimitrovski argued the § 2B1.1(b)(14)(B) enhancement was inapplicable to the

facts of his case. Dimitrovski explained the enhancement applies only if the court

finds the offense involved an “ongoing, sophisticated operation” analogous to an

auto theft or “chop shop.” The enhancement could not apply to Dimitrovski

because the facts show this was not an ongoing, sophisticated operation but rather

“a one-time event where the defendant attempts to resell stolen items that he had

purchased cheaply.”

G.     The Sentencing Hearing




       17
          Dimitrovski had no objections to the factual portion of the PSI or to any guideline
calculations other than the § 2B1.1(b)(14)(B) enhancement.

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      At sentencing, the court heard argument on Dimitrovski’s objection to the

§ 2B1.1(b)(14)(B) enhancement. Dimitrovski contested the enhancement did not

apply because the offense was neither ongoing nor sophisticated. Dimitrovski

argued “[t]here is not an ongoing sophisticated type scheme that the guidelines

contemplate such as a chop shop and auto theft ring.” Instead, Dimitrovski came

across a person selling stolen cargo for $10,000, bought it, and attempted to resell

it for $170,000, thereby relieving his financial debt. This was a one-time crime of

opportunity and therefore the enhancement did not apply.

      The Government responded the scheme was ongoing and sophisticated. The

Government argued “it’s ongoing because this offense conduct lasted over a period

of two to three weeks” and Dimitrovski “negotiated the price over the course of

several days.” The Government further explained the defendants “made efforts to

conceal their activities”; “[t]here are hundreds, if not thousands of goods, that were

a part of this shipment”; and “[t]here were multiple participants,” including a

broker (i.e., Maytin) who helped find a purchaser in South Florida. The

Government then summarized “[s]o it is ongoing and sophisticated, because it

moved through several states and lasted several weeks; it required several

participants.” The Government acknowledged every theft of a cargo shipment is

not necessarily ongoing and sophisticated, giving as an example “[m]aybe

someone steals something at a truck yard off of a truck or something like that.”


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According to the government, however, “in . . . situations where giant loads are

stolen and moved across state lines . . . that is ongoing and sophisticated.”

      Dimitrovski replied he had nothing to do with the actual theft of the cargo

and by the time Dimitrovski became aware of the cargo it was already being

offered for sale. Dimitrovski emphasized “there was not an organized scheme to

rob the big tractor trailer at the truck stop in Tennessee.” Dimitrovski summarized

this was “a simple sale of stolen cargo in one of its simplest forms,” which is not

the type of “organized scheme” the Guidelines intended to punish.

      After reviewing the PSI and considering the parties’ arguments, the district

court overruled Dimitrovski’s objection and adopted the PSI in its entirety,

including its findings of fact and its recommendation of a two-level increase under

§ 2B1.1(b)(14)(B), the organized scheme enhancement. Accordingly, the district

court sentenced Dimitrovski to 18 months’ imprisonment. Dimitrovski renewed

his objection to the § 2B1.1(b)(14)(B) enhancement. This appeal followed.

                           II. STANDARD OF REVIEW

      We review a district court’s interpretation of the Sentencing Guidelines and

application of the Guidelines to the facts de novo, and we review the district

court’s findings of fact for clear error. United States v. Barrington, 648 F.3d 1178,

1194-95 (11th Cir. 2011). We must interpret the Guidelines in light of the

Commentary and Application Notes, which are binding unless they contradict the


                                          11
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Guidelines’ plain meaning. United States v. Kinard, 472 F.3d 1294, 1297 (11th

Cir. 2006). A factual finding is clearly erroneous when, upon review of the

evidence, we are left with a definite and firm conviction a mistake has been made.

Barrington, 648 F.3d at 1195. The government bears the burden of establishing

the facts necessary to support a sentencing enhancement by a preponderance of the

evidence. United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007).

Under the preponderance of the evidence standard, the trier of fact must find the

existence of a fact is more probable than not. United States v. Almedina, 686 F.3d

1312, 1315 (11th Cir. 2012), cert denied, 133 S. Ct. 629 (2012).

                                III. DISCUSSION

A.    Parties’ Arguments on Appeal

      On appeal, Dimitrovski argues his sentence was procedurally unreasonable

because the district court erred in imposing the U.S.S.G. § 2B1.1(b)(14)(B)

organized scheme enhancement. Dimitrovski argues the enhancement applies only

to ongoing, sophisticated operations analogous to the example of an auto theft ring

provided in the Application Notes to § 2B1.1. Dimitrovski contends the

enhancement does not apply because this case involves only a one-time transaction

in which Dimitrovski attempted to resell stolen goods he had purchased cheaply,

and not a complex, ongoing operation.




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      The government counters the record shows Dimitrovski was involved in a

scheme sufficiently organized, ongoing, and sophisticated to warrant the

enhancement because Dimitrovski obtained financing to purchase the stolen goods

by factoring his trucking company’s invoices; inspected the products; researched

their value on the internet; told Brache about the stolen cargo, who then contacted

Maytin in Miami to broker the sale; negotiated the sale; moved the cargo between

various locations; discussed how to transport the load to Colombia; and offered to

provide similar shipments in the future.

B.    Organized Scheme Analysis

      Section 2B1.1(b)(14) of the Guidelines provides:

      If the offense involved an organized scheme to steal or to receive stolen (A)
      vehicles or vehicle parts; or (B) goods or chattels that are part of a cargo
      shipment, increase by 2 levels.

U.S.S.G. § 2B1.1(b)(14)(B). The Commentary to § 2B1.1 explains the

enhancement applies “in the case of an ongoing, sophisticated operation (e.g., an

auto theft ring or ‘chop shop’).” Id., comment. (n. 11).

      The district court found Dimitrovski’s offense involved an “organized

scheme” and applied the enhancement. The district court further adopted all of the

fact findings from the PSI, stating:

      [T]he shipment was stolen from a truck in Tennessee and made its way to
      Illinois where Mr. Dimitrovski is living in financial straits, he gets $10,000
      through a factoring company of ladies -- whose names he does not
      remember -- to purchase this load.
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              Which he puts on a tractor trailer that is registered to RUS
       Corporation, his trucking company, which in fact has an office with two full-
       time employees and leases trucks. And this load comes here where two
       other persons are engaged to sell it.
              So, this involved not only Mr. Dimitrovski, it also involved an
       unknown financier and the persons down here who were hired to then get rid
       of the goods.
              So I think the two level enhancement is, according to the case law, 18
       appropriate. . . . 19

       We review the district court’s finding that an organized scheme existed for

clear error. See United States v. Clarke, 562 F.3d 1158, 1165 (11th Cir.2009)

                 (reviewing district court’s finding that defendant used sophisticated

means for clear error, explaining “[w]e review the district court's findings of fact

related to the imposition of sentencing enhancements . . . for clear error.”). Again,

in applying clear error, “we will not disturb a district court's findings unless we are

left with a definite and firm conviction that a mistake has been committed.”

United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010) (citations and

quotations omitted).

       We conclude the district court did not err, much less clearly err, in finding

Dimitrovski’s receipt, possession, and attempted sale of the L’Oreal products

involved an “organized scheme.” The facts show an organized, ongoing, and


       18
          The cases brought up at the sentencing hearing were unpublished and therefore not
authoritative.
       19
            Again, Dimitrovski did not object to any of the facts contained in the PSI.

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sophisticated operation. 20 Dimitrovski did not simply stumble across a good deal

at a truck stop and make an impulsive purchase. Dimitrovski’s crime was

financed, planned, and deliberate. He first obtained $10,000 by factoring his

company’s invoices with Capital Depot. Then in the span of one day, Dimitrovski

purchased the stolen cargo; Dimitrovski and Brache collaborated to load the stolen

cargo onto one of Dimitrovski’s trailers; Brache called Maytin to broker the sale;

and Dimitrovski instructed Brache to drive the load to Miami, where Brache would

meet with Maytin and show him the goods. That Dimitrovski was able to make all

these arrangements in one day reflects the crime’s sophistication.

       The actions of Dimitrovski and his codefendants upon arriving in Miami

further display the sophisticated nature of the operation. Like savvy businessmen,

Dimitrovski and Brache met with Maytin’s buyer and negotiated the price for the

stolen load over the course of several days, initially asking for $250,000 but

compromising for $170,000. They also expended significant effort to conceal their

illegal activities: Dimitrovski wore latex gloves at the Miami truck yard and

Maytin advised they remove the shipping labels on the stolen load so the products

could not be traced back to them. Lastly, the buyer planned to transport the goods

to Colombia. Therefore, the stolen cargo not only moved across state lines (from


       20
          We do not decide whether the organized scheme enhancement applies when the
underlying operation is organized and sophisticated, but not ongoing, because Dimitrovski’s
operation was all three.
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Tennessee to Illinois then down to Florida); the cargo was going to be shipped

down to some unknown buyer in Colombia. Under these circumstances,

Dimitrovski’s receipt, possession, and attempted sale of the L’Oreal products

involved a sophisticated operation.

      Dimitrovski also planned for the operation to be ongoing. After the

informant agreed to buy the stolen L’Oreal load, Dimitrovski told the informant he

could bring more loads in the future. Dimitrovski’s arrest before he had a chance

to accomplish another transaction does not negate the ongoing nature of the

scheme. An offense may involve an ongoing, sophisticated operation even if it is

committed only once. For example, suppose a defendant sets up a “chop shop,”

which is the Guidelines’ example of an “ongoing, sophisticated operation.” See §

2B1.1, comment. (n. 11). He rents a warehouse, hires employees, establishes all

the necessary connections, and has every intent of running a continuing

operation—but after chopping up his first car, he is arrested. Our case is no

different from this hypothetical. The operation is ongoing because the defendant

intends for it to be so. Dimitrovski intended to continue buying and reselling cargo

with the same people, and therefore his operation was ongoing.

      On these facts, we are not “left with a definite and firm conviction” the

district court erred in finding Dimitrovski’s offense involved an “organized

scheme.” Ghertler, 605 F.3d at 1267 (citations and quotations omitted).


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                       IV. CONCLUSION

For the foregoing reasons, we AFFIRM Dimitrovski’s sentence.




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