                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 13-3737
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                     JAMES DIXON,
                                                Appellant
                                     _____________

                      Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                            (D.C. Crim. No. 4:11-cr-00350-001)
                     District Judge: Honorable Christopher C. Conner
                                     ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  December 8, 2014
                                  ______________

           Before: VANASKIE, COWEN, and VAN ANTWERPEN, Circuit Judges

                             (Opinion Filed: January 7, 2015)
                                    ______________

                                        OPINION*
                                     ______________

VANASKIE, Circuit Judge.

       Appellant James Dixon, an inmate in federal custody, was indicted and convicted

of one count of assaulting a correctional officer under 18 U.S.C. § 111. Prior to trial, the

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
District Court denied Dixon’s motion seeking to dismiss the indictment on selective

prosecution grounds. Dixon challenges this ruling on appeal. Discerning no error in the

District Court’s denial of the motion to dismiss, we will affirm.

                                             I.

       On the morning of June 21, 2010, a physical altercation erupted between several

inmates and staff members in the common area of Unit 2B of the United States

Penitentiary in Allenwood, Pennsylvania. The incident began when Officer George

Sanders ordered inmate Kevin Hickman to place his hands on a railing in preparation for

a search. Hickman refused this direct order, and, within seconds, the two began to

grapple with each other.

       Witnessing this fight, Officer James Bubb ran to aid Officer Sanders and secure

Hickman. Officer Bubb’s efforts were derailed by another inmate, Oloyede Johnson,

who struck him across the chest and temporarily knocked him off his feet. Officer Bubb

returned to his feet and exchanged blows with Johnson. Dixon intervened from behind,

grabbing Officer Bubb around the arms and chest and violently pulling him to the

ground. Dixon held Officer Bubb in place as Johnson punched him several times and

kicked him in the ribs.

       Additional officers responded to the scene and eventually secured the combative

inmates. After order was restored, Officer Bubb sought medical treatment for injuries to

his arm and chest. While searching Unit 2B following the incident, officers discovered a



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metal knife in a trash can. The knife was wrapped in a bloodstained shirt with Hickman’s

name on the tag.

       On December 8, 2011, a grand jury in the Middle District of Pennsylvania indicted

Dixon on one count of assaulting a federal correctional officer, in violation of 18 U.S.C.

§ 111(a)(1) and (b). Dixon subsequently moved to dismiss the indictment on selective

prosecution grounds. While Dixon and the other combative inmates all received

administrative disciplinary sanctions for their respective roles in the altercation, Dixon

noted that he was the only inmate who was criminally charged for his conduct. Dixon

claimed that he was impermissibly selected for prosecution because he exercised his Fifth

Amendment right to silence by refusing to speak with FBI agents during their

investigation concerning the knife recovered following the incident. The District Court

denied Dixon’s motion by Memorandum and Order issued on February 22, 2013.

       Dixon waived his right to a trial by jury, and a bench trial was held on February

27, 2013. The Government introduced video footage of the melee, along with the

testimony of Officer Bubb, the paramedic who treated Bubb, and a special investigative

agent from the penitentiary. Dixon did not contest that he participated in the fight as

depicted in the video and described by Officer Bubb. Instead, Dixon argued that he

should not be subject to the heightened penalty for assaults causing “bodily injury” under

§ 111(b) because Officer Bubb’s injuries were minor.1 The District Court rejected this


       1
        While an individual may be sentenced under § 111(a) to a maximum term of
imprisonment of eight years for assaulting a federal correctional officer, this maximum is
                                             3
argument, adjudged Dixon guilty, and ultimately sentenced him to a term of

imprisonment of 120 months (to run consecutively to the term he was serving at the time

of the assault).

       This appeal followed, with Dixon challenging only the District Court’s denial of

his motion to dismiss the indictment on selective prosecution grounds.

                                              II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291. When analyzing a claim of selective prosecution, we review a

district court’s findings of facts for clear error and its application of legal precepts de

novo. United States v. Taylor, 686 F.3d 182, 197 (3d Cir. 2012).

                                              III.

       Dixon argues that the District Court erred in rejecting his selective prosecution

claim. To prevail on such a claim, a “defendant must ‘provide evidence that [1] persons

similarly situated have not been prosecuted’ and that [2] ‘the decision to prosecute was

made on the basis of an unjustifiable standard, such as race, religion, or some other

arbitrary factor.’” Taylor, 686 F.3d at 197 (quoting United States v. Schoolcraft, 879

F.2d 64, 68 (3d Cir. 1989)). The defendant bears the burden of proving each of these

elements with “clear evidence” sufficient to overcome the presumption of regularity that

attaches to decisions to prosecute. Id.



increased to 20 years pursuant to § 111(b) if the assailant “uses a deadly or dangerous
weapon” or “inflicts bodily injury.” See 18 U.S.C. § 111(a)(1) and (b).
                                             4
       The District Court concluded that Dixon failed to meet his burden with respect to

either element, and we agree. As to the first element, the District Court found that Dixon

was not similarly situated to the other inmates who participated in the altercation but

were not criminally prosecuted for their conduct. The court reasoned that these inmates

differed from Dixon because they were serving life sentences at the time of the fracas,

while Dixon was slated for release from custody in three years’ time.

       As to the second element, the District Court noted the decreased deterrent value of

criminally prosecuting inmates already serving life sentences, and concluded that such a

consideration was not an improper reason for declining to pursue charges against the

other inmates. The District Court also rejected Dixon’s bare assertion that he was

prosecuted because he declined to speak with FBI agents about the metal knife recovered

following the fight. The court observed that Dixon did not allege that he was threatened

with prosecution if he did not cooperate or suggest that other inmates were spared

prosecution because they cooperated.

       Although Dixon generally disagrees with the District Court’s decision, he has

offered no evidence or argument warranting a different result on appeal. That Dixon was

not already serving a life sentence is a sound basis for finding that the others involved in

the assault were not similarly situated. And the decision to prosecute only Dixon did not

rest on some prohibited ground. Nor was the decision not to prosecute those serving life

sentences arbitrary.

                                             IV.
                                              5
      Because Dixon failed to proffer clear evidence of selective prosecution, we will

affirm the District Court’s order of February 22, 2013, denying his motion to dismiss the

indictment. As this is the only claim presented on appeal, we will also affirm the

judgment of conviction entered on August 28, 2013.




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