889 F.3d 249 (5th Cir. 2018), 16-51427, United States v. Fillmore

Docket Nº:16-51427
Citation:889 F.3d 249
Opinion Judge:LESLIE H. SOUTHWICK, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee v. Bobby Dwayne FILLMORE, also known as Jango, Defendant-Appellant
Attorney:Joseph H. Gay, Jr., Assistant U.S. Attorney, Diane D. Kirstein, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee. Brian Walker, Walker Law Firm, Fort Worth, TX, for Defendant-Appellant.
Judge Panel:Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.
Case Date:May 04, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
SUMMARY

The Fifth Circuit vacated in part and remanded in part defendant's 51 month sentence for conspiracy to maintain a chop shop. The court held that defendant was not "in the business" of receiving and selling stolen property and thus the district court erroneously applied a two level sentencing enhancement under USSG 2B6.1(b)(2). The court affirmed the district court's application of a two level... (see full summary)

 
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Page 249

889 F.3d 249 (5th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee

v.

Bobby Dwayne FILLMORE, also known as Jango, Defendant-Appellant

No. 16-51427

United States Court of Appeals, Fifth Circuit

May 4, 2018

Page 250

[Copyrighted Material Omitted]

Page 251

Appeal from the United States District Court for the Western District of Texas, Robert L. Pitman, U.S. District Judge

Joseph H. Gay, Jr., Assistant U.S. Attorney, Diane D. Kirstein, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Brian Walker, Walker Law Firm, Fort Worth, TX, for Defendant-Appellant.

Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.

OPINION

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 resentencing. 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. 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

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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 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...

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