United States v. Alexander Dimitrovski
2015 U.S. App. LEXIS 5324
11th Cir.2015Background
- On June 26, 2013 a tractor-trailer loaded with 34 pallets of L’Oreal products was stolen in Tennessee and later offered for sale at truck stops.
- On July 12, 2013 Dimitrovski (owner of RUS Corporation) obtained $10,000 by factoring invoices and purchased the stolen load at a truck stop in Illinois, believing it was stolen.
- Dimitrovski transferred the cargo to his trailer, inspected goods, and tasked associate Jorge Brache to drive the load to Miami, where broker Justo Aranda Maytin agreed to help sell it.
- Over the next several days the load moved from Illinois to Florida; negotiations occurred in Miami, including plans to remove shipping labels and export the goods to Colombia; Dimitrovski told an informant he could bring more loads in the future.
- FBI surveillance led to arrests on July 18, 2013. Dimitrovski pleaded guilty to receiving, possessing, and selling stolen goods (18 U.S.C. § 2315).
- The Presentence Investigation Report applied a two-level U.S.S.G. § 2B1.1(b)(14)(B) enhancement for an organized scheme; Dimitrovski objected as the conduct was a one-time transaction. The district court adopted the PSI and sentenced him to 18 months; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2B1.1(b)(14)(B) organized-scheme enhancement applies | Government: scheme was organized, ongoing, and sophisticated (financing, interstate movement, concealment, multiple participants, intent to continue) | Dimitrovski: only a one-time opportunistic resale, not an ongoing/sophisticated operation akin to a chop shop | Affirmed: enhancement appropriate; district court’s factual findings not clearly erroneous |
Key Cases Cited
- United States v. Barrington, 648 F.3d 1178 (11th Cir. 2011) (standard of review: de novo for Guidelines interpretation; clear error for factual findings)
- United States v. Kinard, 472 F.3d 1294 (11th Cir. 2006) (Sentencing Commentary and Application Notes are binding absent conflict with Guidelines text)
- United States v. Perez-Oliveros, 479 F.3d 779 (11th Cir. 2007) (government bears preponderance burden to prove facts supporting sentencing enhancement)
- United States v. Almedina, 686 F.3d 1312 (11th Cir. 2012) (preponderance standard defined: fact must be more probable than not)
- United States v. Clarke, 562 F.3d 1158 (11th Cir. 2009) (review of district court factual findings supporting sentencing enhancements for clear error)
- United States v. Ghertler, 605 F.3d 1256 (11th Cir. 2010) (describes "definite and firm conviction" standard for clear-error review)