BLACK, Circuit Judge:
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,"
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 was carrying thirty-four pallets
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.
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.
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.
That same day,
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 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
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.
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.
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.
On February 7, 2014, Dimitrovski pled guilty to count three of a three-count indictment
Dimitrovski's only objection to the PSI was to paragraph 28, the imposition of the § 2B1.1(b)(14)(B) organized scheme enhancement.
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." According to the government, however, "in ... situations where giant loads
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.
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 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, ___ U.S. ___, 133 S.Ct. 629, 184 L.Ed.2d 408 (2012).
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.
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.
Section 2B1.1(b)(14) of the Guidelines provides:
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:
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 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).
For the foregoing reasons, we
