889 F.3d 249
5th Cir.2018Background
- Bobby Dwayne Fillmore, an active-duty Army servicemember, pled guilty to conspiracy to maintain a chop shop after stolen motorcycles were found linked to him.
- PSR described Fillmore stealing multiple motorcycles across Texas, transporting them to a Dallas location where co-conspirators altered VINs, and either selling to or receiving motorcycles back from the chop-shop operators.
- District court applied: base offense level 8 (U.S.S.G. §2B6.1), a 10-level loss-related enhancement (uncontested), a 2-level "in the business of receiving and selling stolen property" enhancement (§2B6.1(b)(2)), and a 2-level leadership-role enhancement (§3B1.1(c)); total offense level 22 → 41–51 months.
- Court sentenced Fillmore to 51 months (top of Guidelines), three years supervised release, and restitution of $219,175.43.
- Fillmore appealed, challenging the in-the-business enhancement, the leadership enhancement, denial of a downward departure for military service, and substantive reasonableness of the sentence.
Issues
| Issue | Plaintiff's Argument (Fillmore) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether §2B6.1(b)(2) "in the business" enhancement applies | Enhancement cannot apply to someone who sells property he himself stole; his temporary transfer for VIN alteration does not make him a fence | Facts show Fillmore sold stolen bikes and relinquished/received them back to facilitate resale, indicating participation in fencing | Court: Enhancement does not apply; district court erred in applying it |
| Whether §3B1.1(c) leadership enhancement applies | He was not an organizer/leader; PSR statements unreliable | PSR and co-defendant statements show he recruited, paid, and directed accomplices | Court: No clear error in applying leadership enhancement; enhancement upheld |
| Denial of downward departure for military service (§5H1.11) | Court should depart downward for 18 years active duty service | District court has discretion to deny; no mistaken belief about authority | Court: Lack of jurisdiction to review discretionary refusal; claim dismissed |
| Substantive reasonableness of 51-month sentence | Sentence greater than necessary under §3553(a) given circumstances | Sentence within Guidelines and supported by facts | Court: Remand required because Guidelines error was not harmless; substantive review deferred to resentencing |
Key Cases Cited
- United States v. Mackay, 33 F.3d 489 (5th Cir.) (enhancement targets buyers/fences, not original thieves)
- United States v. Sutton, 77 F.3d 91 (5th Cir.) (enhancement applies to middlemen who buy/sell stolen goods)
- United States v. Esquivel, 919 F.2d 957 (5th Cir.) (adopts rule that enhancement targets those who sell goods stolen by others)
- United States v. Borders, 829 F.3d 558 (8th Cir.) (applied enhancement where defendant acted frequently with a fence and assisted fence activities)
- United States v. Peters, 978 F.2d 166 (5th Cir.) (leadership enhancement can apply where defendant recruited and organized accomplices)
- United States v. Delgado-Martinez, 564 F.3d 750 (5th Cir.) (Guidelines calculation error requires remand unless error was harmless)