United States v. Fillmore

• Citation: 889 F.3d 249
• Decision Date: 04 May 2018
• Docket Number: No. 16-51427,16-51427
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Bobby Dwayne FILLMORE, also known as Jango, Defendant–Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

889 F.3d 249

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

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.

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 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 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

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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

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