from the United States District Court for the Western
District of Texas
OWEN, SOUTHWICK, and WILLETT, Circuit Judges.
H. SOUTHWICK, Circuit Judge
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 re-sentencing. As to other
rulings, we AFFIRM in part and DISMISS in part.
AND PROCEDURAL BACKGROUND
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.
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).
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 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.
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.
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.
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
"In the business" enhancement
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