United States v. Robert F. Dixon, Jr. , 704 F. App'x 810 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10293
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-00101-LMM-JSA-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT F. DIXON, JR.,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(August 18, 2017)
Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Robert Dixon appeals his below-Guidelines sentence of 34 months’
imprisonment for wire fraud, conspiracy to commit wire fraud, and falsely using
Social Security numbers with the intent to deceive. Mr. Dixon contends that his
sentence is procedurally unreasonable because the district court based it on a
clearly erroneous understanding of the record. Following a review of the record
and the parties’ briefs, we affirm.
I
After the district court announced the sentence, Mr. Dixon’s trial counsel
lodged “an objection for the record . . . on substantive reasonableness.” D.E. 89 at
24. Because Mr. Dixon failed to object specifically to his sentence’s procedural
reasonableness, see Br. of Appellant at 11 (admitting that “counsel did not
specifically make a procedural unreasonableness objection”), we review his appeal
for plain error. See United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.
2014) (reviewing for plain error when defendant fails to object to procedural
reasonableness). See also United States v. Gallo-Chamorro, 48 F.3d 502, 507
(11th Cir. 1995) (“an objection on other grounds will not suffice”).
To establish plain error, Mr. Dixon must show that “(1) there is an error; (2)
that is plain or obvious; (3) affecting [his] substantial rights in that it was
prejudicial and not harmless; and (4) that seriously affects the fairness, integrity or
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public reputation of the judicial proceedings.” United States v. Hall, 314 F.3d 565,
566 (11th Cir. 2002).
II
Mr. Dixon argues that the district court committed a “significant procedural
error” by “selecting a sentence based on clearly erroneous facts.” Gall v. United
States, 552 U.S. 38, 51 (2007). According to the presentence report, which the
district court adopted, Mr. Dixon and his codefendants made up 1,400 Social
Security numbers to obtain credit cards and defraud a bank. Thirty of those,
apparently unbeknown to them, corresponded to real people.
In his colloquy, Mr. Dixon said his crime was victimless. The district court,
responding to his comment, described his offense in the following manner:
Now, I do not agree with what you said that this was a
victimless crime. Because even though this isn’t a
violent crime, people have their identity stolen. Some of
these numbers were maybe made up, but a lot of these
numbers attach themselves to real people. And real
people have problems with you having done this. You
have a company that is victimized because they lost
money. . . . [T]here is a victim here, and that’s something
that I think it’s important for you to understand.
D.E. 89 at 18. Mr. Dixon contends that this was a clearly erroneous
characterization of his offense. We disagree.
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The district court’s statement is supported by the record. Reflecting on
Mr. Dixon’s contention that his crime was victimless, the court correctly pointed
out that there was at least one victim, and possibly several. That victim, as
identified by the district court, was the “company that . . . lost . . . money [to
Mr. Dixon and his codefendants].” Id. at 18. This was a direct reference to the
bank Mr. Dixon defrauded.
No one, not even Mr. Dixon, seriously disputes that the bank was, in the
district court’s own words, “victimized.” Id. Instead, Mr. Dixon’s challenge is
really about the district court’s comments concerning the thirty individuals whose
Social Security numbers he used to defraud the bank.
Mr. Dixon first argues that the district court erred by stating that those
people “have problems with [his crime].” D.E. 89 at 18. He seems to think they
had no quarrel with his crime because, as he reads the presentence report, they
failed to identify “any problems” when contacted by law enforcement. See Br. of
Appellant at 11.
This is a misinterpretation of both the district court’s statement and the
presentence report. According to the presentence report, when contacted by law
enforcement, those thirty individuals “failed to indicate they suffered a financial
loss.” Pre-Sentence Report at 7. Failing to identify a financial loss is different
than having no problem with Mr. Dixon’s actions, which is all the district court
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said. It also does not mean that those people were not victims in some other sense
of the word. See, e.g., 2 Shorter Oxford English Dictionary 3533 (5th ed. 2002)
(defining “victim” as “a person subjected to . . . unfair treatment”).
Mr. Dixon’s second argument concerns the district court’s use of the
modifiers “some” and “lot” when describing the amount of Social Security
numbers corresponding to real people. He says the district court overemphasized
the number of real people that were harmed. See Br. of Appellant at 10–11
(arguing that 1,370 out of 1,400 numbers cannot be characterized as “some”).
Mr. Dixon reads too much into the words “some” and “lot.” Those
modifiers simply refer to an unspecified number of things or people. See 1 Shorter
Oxford English Dictionary 1638–39 (5th ed. 2002); 2 Shorter Oxford English
Dictionary 2919 (5th ed. 2002). And that is how the district court used them. In
any event, failing to use the most precise language possible does not constitute
plain error when, as here, nothing in the record demonstrates that the district court
otherwise failed to comprehend the full factual context or nature of Mr. Dixon’s
crime.
III
The district court statements Mr. Dixon challenges do not show that the
district court erroneously relied on facts not in the record, or that the court failed to
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understand the circumstances of the offense. We therefore find no plain error and
affirm Mr. Dixon’s sentence.
AFFIRMED.
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