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w . v i l l a no v a . e du/thir dc ir c uit_2013/1373NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 11

- 2873

_____________ UNITED STATES OF AMERICA

v. OWSHADRAM MOHABIR, Appellant

_____________ Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 3

- 10

- cr - 00215

- 001 ) District Judge: Honorable Joel H. Slomsky

_____________ Submitted Under Third Circuit LAR 34.1(a) January 11, 2013 Before: RENDELL, FISHER and JORDAN, Circuit Judges (Opinion Filed : January 17, 2013 )

_____________ OPINION OF THE COURT

_____________ RENDEL L, Circuit Judge Owshadram Mohabir appeals his conviction for conspiracy to transport and possess stolen motor vehicles and goods in violation of 18 U.S.C. § 2313 and § 2315 , and his resulting sentence. .

1

1 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291. Specifically, Mohabir presents four issues on app eal: (1) that the evidence presented at trial was insufficient to support a finding of guilt beyond2 a reasonable doubt; (2) that the District Court improperly determined the amount of loss attributable to Mohabir for sentencing purposes; (3) that the Distr ict Court improperly found that Mohabir’s criminal activity was part of an organized scheme; and (4) that the District Court improperly determined Mohabir’s criminal history category. For the reasons that follow, Mohabir’s arguments are without merit, and we will therefore affirm his conviction and sentence. Mohabir was convicted by a jury of one count of a four

- count indictment essentially charging that he, as owner of All Models Forklift Corporation, a sales and repair shop for heavy machinery, acted as a “fence” for stolen heavy e quipment by engaging in a multi

- year, multi

- sta te conspiracy with , inter alia , Orlando Perez . He contends that there was insufficient evidence to support the conviction. Mohabir faces a heavy burden in making this argument, f or we must view the evidence in the light most favorable to the government and will uphold the verdict if “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt

. ” United States v. Voight , 89 F.3d 1050, 1 080 (3d Cir. 1996) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)) (emphasis in original)

. The government was required to prove the elements of the offense, namely, that Mohabir had conspired (1) to receive, possess, store and sell stolen motor ve hicles, which vehicle s had crossed a State boundary after being stolen, knowing the same to have been stolen, in violation of 18 U.S.C. § 2313; and (2) to receive, possess, store3 and sell certain stolen goods of a value of $5,000 or more , which goods had c rossed a State boundary after being stolen, knowing the same to have been stolen, in violation of 18 U.S.C. § 2315. The evidence presented at trial included testimony of investigators, testimony of Perez, who was a cooperating unindicted co

- conspirator,

a udio and visual recordings of a meeting between Mohabir and Perez, and testimony of an All Models Forklift employee who testified as to his knowledge that the pieces of equipment at issue were stolen . In light of this evidence , we cannot conclude that Moh abir has satisfied his burden and , therefore, his conviction must stand . Mohabir’s protestations a s to how he believes the jury “should” have viewed th e evidence are unavailing. The jury could easily have found, and clearly did find, that the evidence

w as sufficient to convict Mohabir of the crimes charged. Regarding his sentence, Mohabir contends that the District Court improperly (1) calculated the loss amount, (2) applied the enhancement at U.S.S.G. § 2B1.1 (b ) ( 13 ) 2

Mohabir argues that the Cou r t improperly considered acquitted conduct in calculating the loss amount of $343,450, which increased his off ense level to 12. However, it is clear th a t the trial courts are not so constrained at sentencing, and even for an offense involving an organiz ed scheme, and (3) determined his criminal history category by includi ng five misdemeanor convictions then on appeal.

2 The Presentence Report used the 2010 version of the United States Sentencing Guide lines and cited the relevant provision as U.S.S.G. § 2B1.1(b)(12). (A784; see also A676.) In the current version of the Guidelines, that provision can be found at U.S.S.G. § 2B1.1(b)(13).4 aquitted conduct can be considered relevant conduct at sentencing if based on reliable evidence. United States v. Watts , 519 U.S. 148, 154 (1997)

. There was testimony as to Perez’s having sold 30 to 40 machines to Mohabir between 2004 and 2010. We agree with the government that assessing the loss at $343,450, and thus in excess of $200,000 but b elow $400,000 , was a conservati v e loss determination. Loss calculations are reviewed for clear error , United States v. Jimenez , 513 F.3d 62, 85 (3d Cir. 2008), and we find no such error in the District Court’s ruling. We similarly find no fault with the District Court ’s application of the enhancement for an organized scheme pursuant to U.S.S.G. § 2B1.1(b)(13) , as it heard extensive evidence as to the brea dth of the conspiracy, involving sophisticated methods of stealing over 50 machines over several years and several states. Lastly, for the first time on appeal, Mohabir challeng es the District Court’s finding that his criminal history category was V. We review this aspect of the District Court’s rulings for plain error. United States v. Couch , 291 F.3d 251, 252

- 53 (3d Cir. 2002)

. At sentencing he urged that the criminal history category over represented the seriousness of his offenses and the District Court agreed, departing downward on that basis. Now, Mohabir urges that a Congressional directive limiting enhancements of penalties for controll ed substances offenses prevented the District Court from calculating his starting crimi nal history category as it did, and this was plain error. We have little difficulty concluding that the District Court properly counted Mohabir’s5 prior convictions

– wh ich involved not merely controlled substances, but violent behavior

– even though they were not yet final , as the G uidelines clearly direct. U.S.S.G. § 4A1.2( l ) T his was not error, let alone plain error . Accordingly, w e will affirm his judg ment of convi ction and sentence.