Filed: Apr. 02, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-12417 Date Filed: 04/02/2015 Page: 1 of 17 [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
Summary: Case: 14-12417 Date Filed: 04/02/2015 Page: 1 of 17 [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 ..
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Case: 14-12417 Date Filed: 04/02/2015 Page: 1 of 17
[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.
2
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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.
3
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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.
4
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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.
5
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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.
6
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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.
7
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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.
8
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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.
9
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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.”
10
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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.
12
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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.
13
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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.
14
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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.
15
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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).
16
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IV. CONCLUSION
For the foregoing reasons, we AFFIRM Dimitrovski’s sentence.
17
