United States v. Dixon , 57 F. App'x 538 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
2-19-2003
USA v. Dixon
Precedential or Non-Precedential: Non-Precedential
Docket 01-3910
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"USA v. Dixon" (2003). 2003 Decisions. Paper 799.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3910
________________
UNITED STATES OF AMERICA
v.
DEMONT DIXON
Appellant
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 99-cr-00525-3)
District Judge: Honorable Jan E. DuBois
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
January 21, 2003
Before: BECKER, Chief Judge, NYGAARD and AMBRO,
Circuit Judges.
(Filed: February 14, 2003)
_______________________
OPINION
_______________________
BECKER, Chief Judge.
This is an appeal by defendant Demont Dixon from the judgment of the District
court in a criminal case following a bargained-for guilty plea. Dixon's counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating, inter alia:
This brief is filed pursuant to Anders v. California, 386
U.S. 738 (1968) because undersigned counsel has concluded
that there are no non-frivolous issues presented for appellate
review. As required by Anders, counsel has throughly reviewed
the record and has attempted to identify issues that arguable
have merit. As a result of this review, counsel has come to the
conclusion that there is only one issue that can even remotely
be characterized as possessing arguable merit and that is
whether the district court abused its discretion when it found
that appellant's sentence in this case should be only partially
concurrent to the sentences that he is serving for other cases.
Because, however, there is nothing in the record which would
indicate or suggest that the district court abused its discretion
with respect to this aspect of appellant's sentence, it is
counsel's belief that this issue provides no basis for relief on
appeal otherwise.
After thorough examination of the proceedings, we agree with counsel that there are
no non-frivolous issues to raise on appeal.
I.
Dixon and twenty co-defendants were charged on August 31, 1999 with conspiracy
to transport stolen vehicles in interstate commerce, interstate transportation of stolen
vehicles, and selling stolen vehicles. Dixon was charged with the conspiracy offense set
forth in Count One and the substantive sales offense set forth in Count Seven. In due
course, Dixon entered a guilty plea to the conspiracy charge. As consideration for the
guilty plea, the government agreed to dismiss the substantive offense at the time of
sentencing. The District Court accepted the plea and ordered the Probation Department to
prepare a presentence investigation report ("PSI").
Sentencing took place on October 16, 2001. After hearing argument from counsel
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concerning the Probation Department's calculation of Dixon's base offense level under the
sentencing guidelines, the District Court partially sustained his objections to the PSI. The
Court thereafter sentenced Dixon to a term of fifty-five months imprisonment with thirty
months of that sentence to be served concurrently with a sentence that he was serving for
prior offenses. The Court also ordered Dixon to serve a period of three years supervised
release.
The indictment alleged that between March of 1995 and May of 1997, Dixon and his
co-defendants were involved in a conspiracy to steal luxury automobiles in Philadelphia and
then transport the vehicles back to New York where they would be "replated," which refers
to "the removal or obliteration of vehicle identification numbers (VIN) which are stamped
on or affixed to various parts of a motor vehicle." Once the vehicles were "replated" in New
York, they were either sold in New York or returned to Philadelphia for resale.
The leader of the conspiracy was one Donald Truesdale. Following his arrest in
1997 for other offenses, Truesdale agreed to cooperate with the government and testify
against his co-defendants in this case. He did so, including against Dixon, who was charged
with participating in the conspiracy and selling or aiding and abetting the sale of a stolen
1996 Toyota Rav-4 on or around January 1997.
In computing Dixon's offense level under the federal sentencing guidelines, the
Probation Department relied upon statements from Truesdale and other co-conspirators
who had provided information to the government. The Probation Department found that
Dixon was Truesdale's primary car thief during the period 1993 through 1997 and that he
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was directly or indirectly responsible for the theft of at least seventy-five cars that were
worth in excess of $1.5 million. Based on this conclusion, the Probation Department
found that Dixon was subject to a base offense level of four under U.S.S.G. § 2B1.1 that
was then increased fourteen levels under § 2B1.1(b)(1)(O) because the amount of the loss
exceeded $1,500,000.00. Dixon challenged the amount of loss charged to him. However,
at the sentencing hearing, the government presented evidence from the special agent in
charge of the investigation in support of the loss estimates. After hearing this testimony,
the District Court partially sustained Dixon's objections to the offense level increases that
were based on the value of the stolen cars and the period of his involvement in the
conspiracy and found that the loss figure was between $800,000.00 and $1,500,000.00.
This conclusion reduced the total offense level to seventeen and exposed Dixon to a range
of fifty-one to sixty months imprisonment.
The Court heard argument from counsel as to whether the sentence should be served
concurrently or consecutively to sentences that Dixon was serving for other offenses. The
defense contended that the sentence in this case should be fully concurrent with the
undischarged terms in the other cases for three reasons: (1) part of the offense conduct was
referenced in a PSI from one of the earlier cases; (2) the length of the other sentences was
more than adequate to deter Dixon from engaging in criminal conduct after his release; and
(3) the two years that Dixon spent in pretrial detention for this case was significantly more
punitive than it would have been had he been sentenced earlier and designated to a federal
prison. After considering these arguments, the District Court found that a partially
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concurrent sentence would be reasonable punishment in this case. The Court then
sentenced Dixon to a term of fifty-five months imprisonment with thirty months of that
sentence to be served concurrently with the other sentences that Dixon was serving, thus
effectively sentencing him to a term of twenty-five months imprisonment for his conduct.
II.
The operative sentencing guideline for determining whether a sentence should be
imposed concurrently, partially concurrently, or consecutively is § 5G1.3(c), the
application notes to which state that the sentencing court should seek to achieve a
"reasonable punishment and avoid unwanted disparity," and that the factors set forth in 18
U.S.C. §3553(a) should be considered in this regard. Id. at comment. (n.3). These factors
include the nature and circumstances of the offense, the defendant's character, the need for
the sentence to reflect to seriousness of the offense, the need to deter the criminal
conduct, the need to protect the public from the defendant, the kinds of sentences available,
the sentencing ranges prescribed by the guidelines and applicable policy statement, and the
need to provide restitution to any victims of the offense. 18 U.S.C. §3553(a).
We explained in United States v. Saintville, 218 F.3d 246 (3d Cir. 2000), that §
5G1.3(c) gives the District Court discretion in determining whether to order a concurrent,
partially concurrent, or consecutive sentence. Id. at 248 (a "district court's determination
to impose a partially concurrent and partially consecutive sentence [is reviewed] on a an
abuse of discretion basis"). In this case, neither a consecutive sentence nor a fully
concurrent sentence was required by § 5G1.3(a) or (b). Thus, the District Court had
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discretion under subsection (c) to decide whether to order the sentence in this case to be
served concurrently, partially concurrently, or consecutively to the sentences that Dixon
was serving for the prior offenses. Saintville, 218 F.3d at 248.
In exercising that discretion, the District Court made the following remarks:
I'm not going to run the entire [55-month] sentence concurrently with your
existing sentences, I'm going to run 30 months of the sentence concurrently
and 25 months, a little over two years, consecutively. I do that because I
think to do otherwise would deprecate the seriousness of the crime you
committed. I've taken into consideration -- all of the factors that are listed in
-- let me turn to it -- 5(g)(1.3)[sic] and I think that's an appropriate sentence.
In dong so, I take into consideration that the district judge in New York
might, might have taken into consideration in reading about the thefts over
the weekend in January of 1997, he might have taken that into consideration.
I've taken into consideration all of the factors that were advanced by [defense
counsel].
In view of these statements and the specific reference to the factors set forth in the
commentary to § 5G1.3, any argument that the District Court abused its discretion in
ordering a partially consecutive sentence would be legally frivolous.
Our jurisprudence requires that counsel in an Anders situation adequately attempt to
uncover the best arguments for his or her client. See United States v. Donald Wayne
Marvin, 211 F.3d 778 (3d Cir. 1999). Having read the entire record, we are satisfied that
counsel has fulfilled his Anders obligations. We will therefore grant counsel’s request to
withdraw, and will affirm the judgment on the merits.1
1
We also note our view that, because the issues presented in the appeal lack legal merit,
they do not require the filing of a petition for writ of certiorari with the Supreme Court. 3d
Cir. LAR 109.2(b)(2000).
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______________________
BY THE COURT:
/s/ Edward R. Becker
Chief Judge
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