United States v. Kenneth Borders , 829 F.3d 558 ( 2016 )


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  • United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 14-3828
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Kenneth Ray Borders
    lllllllllllllllllllll Defendant - Appellant
    ___________________________
    No. 15-1648
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Jon Dirk Dickerson, also known as Dirk
    lllllllllllllllllllll Defendant - Appellant
    ___________________________
    No. 15-1651
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Kyle Wayne Dickerson
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeals from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: March 16, 2016
    Filed: July 12, 2016
    ____________
    Before WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.
    ____________
    BENTON, Circuit Judge.
    Kenneth Ray Borders, Jon Dirk Dickerson, and Kyle Wayne Dickerson appeal
    their convictions for crimes involving stolen goods and vehicles. At trial, the
    government proved a conspiracy, beginning in about 1998, to steal commercial trucks,
    trailers, and cargo, and alter vehicle identification information. Jon owned and
    operated several trucking companies, including Night Line Trucking; his son Kyle
    worked at the companies and partly owned Night Line Trucking. Jon would give
    Borders “shopping lists” of trucks and trailers to steal. Borders stole and sold the
    vehicles and trailers to the Dickersons. Borders also sold stolen cargo to other
    customers and stored stolen property at a storage unit paid for by the Dickersons. A
    government witness, Jaccard Fears, testified to working for the Dickersons for two
    years, falsifying paperwork at their direction, going on scouting missions with
    Borders, and helping Borders clean stolen trucks. Another witness testified that Jon
    siphoned fuel at night, stole license plates and fuel tax stickers in order to create false
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    registration and insurance documents, and directed him to steal a truck. The witness
    also testified Kyle removed VIN plates and cut up trailers to sell for scrap.
    A jury convicted Borders of conspiracy, aiding and abetting the transportation
    of stolen goods, and aiding and abetting the possession of stolen vehicles. The jury
    convicted Jon and Kyle of conspiracy, aiding and abetting the possession of stolen
    goods, and aiding and abetting the possession of stolen vehicles. Borders was
    sentenced to 262 months, Jon 188 months, and Kyle 110 months in prison. Having
    jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and
    remands.
    I.
    Defendants challenge the finding of a single conspiracy, arguing the district
    court should have granted judgment of acquittal due to a variance, or instructed the
    jury on multiple conspiracies. Because Defendants did not raise this issue at trial, this
    court reviews for plain error. United States v. Buckley, 
    525 F.3d 629
    , 633 (8th Cir.
    2008). Plain error means an error that is clear under current law, caused prejudice,
    and seriously affected the fairness, integrity, or public reputation of judicial
    proceedings. United States v. Delgado, 
    653 F.3d 729
    , 735 (8th Cir. 2011), citing
    United States v. Olano, 
    507 U.S. 725
    , 732 (1993).
    A single conspiracy requires “one overall agreement.” United States v.
    Morales, 
    113 F.3d 116
    , 119 (8th Cir. 1997). It “is not proved by a mere overlap of
    personnel or knowledge of another’s illegal conduct. Rather, to prove that individual
    agreements among separate conspirators were made to advance a single enterprise, the
    government must show that the conspirator each were motivated by a common
    purpose.” United States v. Peyro, 
    786 F.2d 826
    , 829 (8th Cir. 1986) (internal citations
    omitted). “A variance results where a single conspiracy is charged but the evidence
    at trial shows multiple conspiracies.” 
    Morales, 113 F.3d at 119
    . This court considers
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    the totality of the circumstances, including the nature of the activities, their location,
    time frame, participants involved. 
    Id. The totality
    of the circumstances supports the single conspiracy finding. The
    government presented evidence that, from about 1998 until 2012, Jon would give
    Borders a shopping list of trucks and trailers to steal; Borders would steal them; and
    Kyle would remove the VIN numbers to prevent police detection.
    Defendants argue the special jury verdict forms demonstrate a variance. Special
    verdict forms required the jury to find each defendant’s purposes in carrying out the
    conspiracy. For all Defendants, the jury marked possession of stolen vehicles (18
    U.S.C. § 2313) and possession of stolen goods (§ 2315). For Borders, the jury also
    marked transportation of stolen goods (§ 2314), and for the Dickersons, the jury
    marked altering or removing motor vehicle identification numbers (§ 511). According
    to Defendants, the special verdict forms show the jury found two conspiracies: (1)
    between Borders and the Dickersons to possess stolen vehicles and goods, and (2)
    between the Dickersons to alter and remove VIN numbers. Under plain error review,
    it is not enough for Defendants to present a plausible argument for the existence of an
    error. Rather, the error must be “clear under current law.” 
    Delgado, 653 F.3d at 735
    ,
    citing 
    Olano, 507 U.S. at 732
    . Defendants have not demonstrated it is clear under
    current law that special verdict forms are alone sufficient to establish a variance,
    especially when the jury also finds the defendants guilty of a single conspiracy.
    The jury could reasonably find a single conspiracy existed and each defendant
    a knowing member of it.
    II.
    Kyle contests the convictions of four aiding and abetting charges. This court
    reviews de novo the sufficiency of the evidence, drawing all reasonable inferences in
    favor of the verdict. United States v. Nguyen, 
    758 F.3d 1024
    , 1029 (8th Cir. 2014).
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    An aiding and abetting conviction requires the government to prove a defendant took
    an affirmative act to further the underlying criminal offense, with the intent of
    facilitating the offense. Rosemond v. United States, 
    134 S. Ct. 1240
    , 1245 (2014).
    “An intent to advance some different or lesser offense is not, or at least not usually,
    sufficient: Instead, the intent must go to the specific and entire crime charged. . . .”
    
    Id. at 1248.
    The government may use circumstantial evidence. United States v.
    Duranseau, 
    26 F.3d 804
    , 809 (8th Cir. 1994).
    In Count 2, the jury convicted Kyle of aiding and abetting the unlawful
    transportation of a stolen vehicle from Missouri to Florida. Borders stole the truck,
    and Fears and a broker arranged its transportation. However, Fears testified that he
    acted under Kyle’s authorization—“I was given permission by Jon and Kyle to book
    freight under Nightline and D&T.” The broker paid “K. Wayne Dickerson” for
    shipping the load. And, two investigators spoke with Kyle on the phone about the
    truck. Viewed in the light most favorable to the verdict, this evidence is sufficient to
    support the conviction.
    In Count 18, 20, and 25, the jury convicted Kyle for aiding and abetting the
    possession of stolen goods and vehicles, found during a search of a storage unit rented
    by Jon and Kyle. Kyle contends he did not know that stolen goods and vehicles were
    being stored at the unit. The government’s only contrary evidence is that Kyle rented
    the unit and had a key. This is insufficient to support the conclusion that Kyle took
    an affirmative act with the intent to aid in the storage of stolen goods and vehicles.
    See 
    Rosemond, 134 S. Ct. at 1248
    .
    The conviction for Count 2 is affirmed. The convictions for Counts 18, 20, and
    25 are vacated.
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    III.
    Defendants challenge several evidentiary rulings, which are reviewed for abuse
    of discretion. See United States v. Jackson, 
    67 F.3d 1359
    , 1366 (8th Cir. 1995).
    A.
    Defendants argue the district court erred in admitting evidence of Department
    of Transportation civil violations by the Dickersons. The government submitted
    evidence that the Dickersons used unsafe trucks, failed to drug-test drivers, and failed
    to pay fines, resulting in several cease-and-desist orders. The government also
    submitted a Record Consolidation Order, finding Jon Dickerson operated numerous
    businesses under different identities to avoid complying with DOT orders. The
    Consolidation Order was issued in July 2013—six months after the indictment.
    According to the government, the evidence was relevant to establish the
    Dickersons’ tendency to abuse their trucks, creating the need for Borders to steal other
    trucks. However, evidence of civil violations cannot be used to prove criminal
    liability, making the question one of undue prejudice, not relevance. See United
    States v. Parker, 
    364 F.3d 934
    , 942 (8th Cir. 2004) (“The paramount concern for the
    trial judge . . . is not one of relevancy, because . . . evidence of civil violations is
    clearly relevant insofar as a defendant’s knowledge and violation of the regulations
    are relevant to show intent and motive. Instead, the question is one of undue
    prejudice.”). See also United States v. Hilliard, 
    31 F.3d 1509
    , 1516 (10th Cir. 1994)
    (“Although the evidence concerning a civil violation may be used to prove knowledge
    or intent, it may not be used to prove criminal liability.”). Admission of civil
    violations is permissible if the district court takes “painstaking care to guard against
    the possibility that the defendant would be convicted of a federal crime because he
    violated civil violations.” 
    Parker, 364 F.3d at 943
    (noting the district court had
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    “explicitly admonished the jury that the trial was ‘not a lawsuit claiming violation of
    the Federal Trade Commission, FTC, requirements’”).
    Here, the record shows no such painstaking care. Instead, with no limiting
    instruction, the district court allowed the government to discuss the violations in
    opening and closing arguments and spend almost the entire first day of trial
    questioning witnesses about the violations. The jury heard testimony about more than
    100 incidents involving DOT violations. This was error. However, “[a]n erroneous
    evidentiary ruling is harmless . . . if it did not have a substantial influence on the jury’s
    verdict.” United States v. Adejumo, 
    772 F.3d 513
    , 525 (8th Cir. 2014). Even without
    the civil violations evidence, the government presented substantial evidence to support
    the convictions for Jon, Kyle, and Borders.
    Any error in admitting the civil violations evidence was harmless.
    B.
    Borders and Jon Dickerson argue the district court abused its discretion by
    limiting cross-examination on the benefits received by cooperating witnesses. The
    Confrontation Clause of the Sixth Amendment guarantees a defendant’s right to
    confront witnesses against him. “The primary purpose of this right is to guarantee the
    opportunity for effective cross-examination, particularly with respect to a witness’s
    potential bias.” United States v. Walley, 
    567 F.3d 354
    , 358 (8th Cir. 2009).
    It does not follow, of course, that the Confrontation Clause
    of the Sixth Amendment prevents a trial judge from
    imposing any limits on defense counsel’s inquiry into the
    potential bias of a prosecution witness. On the contrary,
    trial judges retain wide latitude insofar as the Confrontation
    Clause is concerned to impose reasonable limits on such
    cross-examination based on concerns about, among other
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    things, harassment, prejudice, confusion of the issues, the
    witness’ safety, or interrogation that is repetitive or only
    marginally relevant.
    Delaware v. Van Arsdall, 
    475 U.S. 673
    , 679 (1986). The question is whether a
    “reasonable jury might have received a significantly different impression of [the
    witness’s] credibility had . . . counsel been permitted to pursue his proposed line of
    cross-examination.” 
    Id. at 680.
    Here, the district court limited examination to
    questions about the witness’s (1) charge, (2) range of punishment, (3) sentenced
    imposed, and (4) that the witness hoped to receive a lesser sentence through
    cooperation. See United States v. Baldenegro-Valdez, 
    703 F.3d 1117
    , 1123 (8th Cir.
    2013) (upholding similar limits).
    The district court did not abuse its discretion.
    C.
    Borders challenges the admission of a 2003 plea agreement, where he admitted
    to stealing a trailer. He argues admission violated the Double Jeopardy Clause and
    rendered his plea involuntary, particularly because the same United States Attorney’s
    office prosecuted the 2003 case and this case. “The Double Jeopardy Clause . . . does
    not forbid a conspiracy prosecution merely because the defendant previously was
    convicted for a substantive offense that might have constituted an overt act in the
    conspiracy.” United States v. Pierre, 
    795 F.3d 847
    , 852 (8th Cir. 2015), citing United
    States v. Felix, 
    503 U.S. 378
    , 391 (1992). This is also true for plea agreements. See
    United States v. Williams, 
    104 F.3d 213
    , 216-17 (8th Cir. 1997). A plea is rendered
    involuntary only if the prosecutors “actively hid” knowledge of the later prosecution
    or “colluded” with officials intending to use the statements in a subsequent trial. 
    Id. at 216.
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    Even assuming the district court erred in admitting the plea agreement, it “did
    not have a substantial influence on the jury’s verdict.” See 
    Adejumo, 772 F.3d at 525
    .
    The government used the plea agreement to establish an overt act in furtherance of the
    conspiracy. Regardless, the government presented evidence of other overt acts,
    sufficient to establish Borders’s participation in the conspiracy. Any error in
    admitting the plea agreement did not cause prejudice.
    D.
    Borders objects to the government’s use of a summary exhibit to present the
    timeline of the conspiracy under Federal Rule of Evidence 1006. Because Borders did
    not object at trial, this court reviews for plain error. 
    Buckley, 525 F.3d at 633
    .
    Summary evidence is proper “when it assists the jury in understanding the testimony
    already introduced and fairly summarizes trial evidence.” 
    Adejumo, 772 F.3d at 524
    (internal quotation marks omitted). Although the government’s summary exhibit was
    introduced before the summarized evidence, the exhibit did not prejudice Borders, or
    seriously affect the fairness, integrity, or public reputation of judicial proceedings.
    See 
    id. at 525
    (“When, as here, the government’s evidence of a defendant’s guilt is so
    overwhelming, any error related to the admission of a summary chart is harmless.”).
    IV.
    Defendants bring several sentencing challenges. The application of a
    sentencing enhancement is reviewed de novo; the factual basis is reviewed for clear
    error. United States v. Collins, 
    754 F.3d 626
    , 629 (8th Cir. 2014). If a defendant
    objects to factual statements in the presentencing reports, the government must prove
    those facts by a preponderance of the evidence. United States v. Bowers, 
    743 F.3d 1182
    , 1184 (8th Cir. 2014).
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    A.
    Defendants challenge application of the total loss enhancement. They stipulated
    that, in the aggregate, the total loss for all criminal activities exceeded $1 million, but
    now contest their liability for the entirety of the loss. To determine enhancements in
    the case of “jointly undertaken criminal activity,” the Guidelines allow consideration
    of “all acts and omissions of others that were (I) within the scope of the jointly
    undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii)
    reasonably foreseeable in connection with that criminal activity.” U.S. Sentencing
    Guidelines Manual § 1B1.3(a)(1)(B) (2013). See also 
    Adejumo, 772 F.3d at 533
    (“In determining the individual defendant’s relevant conduct, the district court must
    look at what the individual has agreed to do and whether the actions of others in the
    conspiracy were foreseeable from his vantage point.”).
    Relying on his multiple conspiracies argument, Borders contends he can be held
    liable only for the losses from the conspiracy to possess stolen vehicles and goods,
    and not the separate conspiracy between the Dickersons to alter VIN numbers.
    Because he did not raise this to the district court, this court reviews for plain error.
    
    Bowers, 743 F.3d at 1184-85
    . Whether the government proved multiple conspiracies
    is irrelevant. Borders can be held liable for any loss from activities reasonably
    foreseeable, within the scope, and in furtherance of, the criminal activity. See
    § 1B1.3(a)(1)(B). Fears testified Borders watched him clean VIN numbers off trucks
    and trailers, which aided the Defendants in possessing stolen vehicles and goods
    without police detection. Even if the Dickersons were involved in a separate
    conspiracy to alter VIN numbers, Borders knew of the activity and knew it furthered
    their conspiracy to steal trucks and trailers.
    Jon argues he is not liable for the losses from the theft of a Keystone
    Automotive truck, Budweiser beer, and Nike shoes. Borders stole these items,
    assisted at times by Fears—Jon’s employee. Jon stored Borders’ stolen trucks and
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    trailers at his storage unit. Even if he did not specifically know about the Keystone
    truck, beer, and shoes, Jon knew that Borders regularly stole trucks and trailers with
    cargo. The thefts were foreseeable, and furthered the conspiracy to steal trucks,
    trailers, and cargo.
    The district court did not commit plain error in applying the sentencing
    enhancement for the total loss exceeding $1 million.1
    B.
    Defendants challenge application of the “in the business of receiving and selling
    stolen property” enhancement. See § 2B1.1(b)(4). They argue it applies only to
    professional fences, not “to a defendant who merely sells goods that he himself has
    stolen, or merely uses goods stolen by and received from others.” See United States
    v. Vigil, 
    644 F.3d 1114
    , 1118 (10th Cir. 2011).2
    This court agrees. The fence requirement accounts for the plain language of the
    enhancement, which requires both “receiving and selling stolen property.” See
    § 2B1.1(b)(4) (emphasis added). See also United States v. Kimbrew, 
    406 F.3d 1149
    ,
    1152 (9th Cir. 2005) (“Nearly every circuit that has addressed the meaning of this
    enhancement has agreed ‘that a thief who sells goods that he himself has stolen is not
    in the business of receiving and selling property.”); 
    Vigil, 644 F.3d at 1118-19
    (and
    cases cited therein); United States v. Sutton, 
    77 F.3d 91
    , 94 (5th Cir. 1996).
    1
    Because this court vacates three of Kyle’s convictions, it remands for a new
    sentencing hearing without addressing his amount-of-loss argument.
    2
    Because Borders did not object to this enhancement, his challenge is reviewed
    for plain error. See 
    Buckley, 525 F.3d at 633
    .
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    The government invokes United States v. Vickers, 
    528 F.3d 1116
    (8th Cir.
    2008). Nothing here conflicts with Vickers. Vickers adopts a totality of the
    circumstances test for the “in the business” enhancement, as stated in (1) the
    Sentencing Commission’s Comment 5,3 and (2) the First Circuit’s decision in St. Cyr.
    See 
    id. at 1120-21,
    citing United States v. St. Cyr, 
    977 F.2d 698
    (1st Cir. 1992).
    Under either version of the test the “in the business” enhancement applies only to
    defendants who are fences. See United States v. McMinn, 
    103 F.3d 216
    , 222 (1st Cir.
    1997) (“St. Cyr neither expressed nor implied disapproval of the basic proposition that
    the ITB enhancement guideline should apply only to ‘professional fences.’”);
    U.S.S.G. app. C, amend. 617 (noting the totality of the circumstances “more properly
    targets the conduct of the individual who is actually in the business of fencing.”
    (emphasis added)). Vickers establishes the test—totality of the circumstances. And,
    3
    See also U.S.S.G. § 2B1.1, cmt. 5:
    For purposes of subsection (b)(4), the court shall consider
    the following non-exhaustive list of factors in determining
    whether the defendant was in the business of receiving and
    selling stolen property:
    (A) The regularity and sophistication of the defendant’s activities.
    (B) The value and size of the inventory of stolen property
    maintained by the defendant.
    (C) The extent to which the defendant’s activities encouraged or
    facilitated other crimes.
    (D) The defendant’s past activities involving stolen property.
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    this test answers two questions—whether the defendant (1) was a fence (“receiving
    and selling stolen property”, and (2) was “in the business” of fencing.4
    Jon gave Borders “shopping lists” of trucks and trailers to steal. He also stole
    trucks, license plates, and fuel-tax stickers. He directed Kyle to cut up any unusable
    part of the trucks and trailers to sell for scrap. Jon had a prior state conviction for
    receiving stolen property. The value of property stolen exceeded $1 million dollars.
    In light of the totality of the circumstances, it was not clear error to apply the “in the
    business” enhancement to Jon.
    Borders stole and sold trucks, trailers, and cargo. He rented a storage unit for
    the stolen property, and sold the property to numerous buyers. Even if he was not
    himself a fence, he personally participated in Jon’s activities. He often scouted and
    stole trucks with Fears—Jon’s employee. He stored stolen property at Jon’s storage
    facility. And, he filled Jon’s “shopping lists.” He had two prior federal convictions
    for thefts of goods and transportation of stolen goods, and a state conviction for
    receiving stolen property. It was not plain error to apply the “in the business”
    enhancement to Borders.5
    4
    See also 
    Vigil, 644 F.3d at 1120
    (“[I]n construing the ITB Enhancement,
    courts have found that adoption of the ‘totality-of-the-circumstances’ test—rather than
    the ‘fence’ test—does not alter the threshold requirement that the defendant be a
    ‘fence.’”); 
    Kimbrew, 406 F.3d at 1149
    (“[T]here is nothing inconsistent about
    adopting a totality of the circumstances approach to the ‘in the business’ question,
    while also requiring a defendant to be a fence—to receive and sell property stolen by
    others—before the enhancement applies.”); United States v. Saunders, 
    318 F.3d 1257
    (11th Cir. 2003) (same).
    5
    Because this court vacates three of Kyle’s convictions, it remands for a new
    sentencing hearing without addressing his “in the business” argument.
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    C.
    Defendants argues it was impermissible double counting to apply the “in the
    business” enhancement and a 2-level enhancement because “the offense involved an
    organized scheme to steal or receive stolen” vehicles, vehicle parts, and cargo. USSG
    § 2B1.1(b)(14). This court reviews de novo “whether the district court’s application
    of the sentencing guidelines amounts to impermissible counting.” United States v.
    Myers, 
    598 F.3d 474
    , 475-76 (8th Cir. 2010). “Double counting occurs when one part
    of the Guidelines is applied to increase a defendant’s punishment on account of a kind
    of harm that has already been fully accounted for by application of another part of the
    Guidelines.” United States v. Rohwedder, 
    243 F.3d 423
    , 426-27 (8th Cir. 2001)
    (emphasis added). The “in the business” enhancement addresses the harm of fencing.
    See 
    Vickers, 528 F.3d at 1121
    . The “stolen vehicle” enhancement addresses the harm
    to the transportation industry that results from either buying or selling stolen vehicles.
    It was not impermissible double counting to apply both enhancements.
    D.
    Borders challenges application of the leader/organizer enhancement—a 4-level
    enhancement if the defendant is “an organizer or leader of a criminal activity that
    involved five or more participants. . . .” § 3B1.1(a). The enhancement depends on:
    (1) the defendant’s exercise of decision making authority; (2) the nature of
    participation in the commission of the offense; (3) the recruitment of accomplices;
    (4) the claimed right to a larger share of the fruits of the crime; (5) the degree of
    participation in planning or organizing the offense; (6) the nature and scope of the
    illegal activity; and (7) the degree of control and authority exercised over others.
    Application Note 4. A defendant need not be the only organizer or leader, or have
    led all other participants. United States v. Bahena, 
    223 F.3d 797
    , 804 (8th Cir. 2000).
    However, this enhancement “always require[s] evidence that the defendant directed
    or procured the aid of underlings.” 
    Adejumo, 772 F.3d at 532
    . Here, Borders led
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    scouting parties to find vehicles. He directed Fears to remove VIN numbers to
    prevent police detection. He stole merchandise and arranged for its transportation,
    storage, and purchase. It was not clear error to apply the 4-level leader/organizer
    enhancement.
    Borders also challenges the 2-level enhancement for “sophisticated means.”
    See § 2B1.1(10). “Sophisticated means” are “especially complex or especially
    intricate offense conduct pertaining to the execution or concealment of an offense.”
    
    Adejumo, 772 F.3d at 531
    , quoting U.S.S.G. § 2B1.1(b)(1), cmt. n. 9(B). The
    enhancement applies when “the offense conduct, viewed as a whole, was notably more
    intricate than that of the garden-variety offense.” 
    Id. “Even if
    any single step is not
    complicated, repetitive and coordinated conduct can amount to a sophisticated
    scheme.” United States v. Fiorito, 
    640 F.3d 338
    , 351 (8th Cir. 2011). Here, Borders
    was connected to at least nine separate events, over a period of four years, involving
    six trucks, fifteen trailers, and thousands of dollars in cargo. He conducted scouting
    missions, worked with Jon to fill “shopping lists,” procured buyers, and gave trucks
    and trailers to the Dickersons to remove VIN numbers. It was not clear error to apply
    the 2-level enhancement for “sophisticated means.”
    Finally, Borders argues he received a disparate sentence. “When a single
    defendant asserts on appeal that a similarly situated co-conspirator was sentenced
    differently, and both sentences are within the range of reasonableness, there is no
    principled basis for an appellate court to say which defendant received the
    ‘appropriate’ sentence.” United States v. Fry, 
    792 F.3d 884
    , 893 (8th Cir. 2015). All
    defendants received sentences within their Guidelines ranges and are presumptively
    reasonable on appeal. See Rita v. United States, 
    551 U.S. 338
    , 350-51 (2007).
    The district court did not give Borders a disparate sentence.
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    *******
    The case is affirmed in part, reversed in part, and remanded for proceedings
    consistent with this opinion.
    ______________________________
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