                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-9-2002

USA v. Dixon
Precedential or Non-Precedential: Precedential

Docket No. 01-3845




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"USA v. Dixon" (2002). 2002 Decisions. Paper 642.
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PRECEDENTIAL

       Filed October 9, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 01-3845/3846

UNITED STATES OF AMERICA.

v.

DANTE DIXON,

       Appellant

On Appeal from the United States District Court
for the District of New Jersey

District Court Judge: The Honorable
Joseph A. Greenaway
(D.C. Nos. 01-cr-00090/00099)

Argued on July 19, 2002

Before: McKEE, FUENTES, and ALDISERT, Circuit   Judges

(Opinion Filed: October 9, 2002)

       Timothy J. McInnis [Argued]
       Law Office of Timothy J. McInnis
       521 Fifth Avenue, Suite 1700
       New York, NY 10175

       Attorney for Appellant Dante Dixon




       Christopher J. Christie
       United States Attorney
       George S. Leone
       Chief, Appeals Division

       Gail R. Zweig [Argued]
       Assistant U.S. Attorney
       970 Broad Street
       Newark, NJ 07102-2535

       Attorneys for Appellee
       United States of America

OPINION OF THE COURT

FUENTES, Circuit Judge:

The primary issue in this appeal is whether the District
Court committed plain error in accepting defendant Dante
Dixon’s guilty plea by overstating to Dixon, by 30 years, the
statutory maximum sentence he faced. Dixon contends that
had he known the correct maximum sentence he faced, he
might have chosen to plead not guilty and take his chances
at trial. He therefore urges us to vacate his sentence so that
he may withdraw his guilty plea and his case may be
restored to its pre-guilty plea posture. Because Dixon has
failed to demonstrate that he was prejudiced by the
overstated sentence, we conclude that he is not entitled to
plain error relief. However, we remand this case for the
District Court to correct the sentence it imposed.

I.

In January 1997, Dante Dixon and Michael Stubblefield
orchestrated a scheme to obtain several hundred
unauthorized credit cards. Their scheme involved the use of
sham operations to create fake mail-drop addresses. They
also directed their so-called "employees" to collect personal
information regarding real persons, both living and
deceased, and to submit fraudulent credit card applications
in those persons’ names. The criminal enterprise operated
out of several states including New York and New Jersey.

                                2


On July 25, 2000, Dixon was charged in a criminal
complaint with conspiring to engage in credit card fraud,
contrary to 18 U.S.C. S 1029(a)(2) and in violation of 18
U.S.C. S 1029(b)(2).1 At his initial appearance before a
Magistrate Judge, Dixon was informed that he faced a
maximum penalty of 10 years, assuming that he did not
have a prior federal conviction for credit card fraud. In case
of a prior conviction, Dixon was told that he faced a
maximum penalty of 20 years.

Pursuant to a negotiated plea agreement, Dixon agreed to
plead guilty to two one-count Informations. One
Information was filed in the District of New Jersey, and the
second was filed in the Southern District of New York and
transferred to the District of New Jersey under Federal Rule
of Criminal Procedure 20. Each Information charged him
with conspiracy to commit credit card fraud in violation of
18 U.S.C. S 1029(b)(2). The plea agreement provided that
the maximum statutory term Dixon faced with respect to
each count was twenty years’ imprisonment. The agreement
further provided that in exchange for the plea, federal
prosecutors in neither the District of New Jersey nor the
Southern District of New York would bring any additional
charges against Dixon arising out of the conspiracy to
commit credit card fraud that was effectuated in each
jurisdiction.

In its pre-sentence report, the Probation Department
calculated the amount of loss incurred by victims of the
conspiracy, based upon figures furnished by the
Government, to be $1,650,301. In the plea agreement,
however, the parties agreed to stipulate a lower loss range
to the court of more than $800,000, but less than $1.5
million, thereby yielding a lower base offense level for Dixon
under the Sentencing Guidelines. It was further stipulated,
_________________________________________________________________

1. The criminal complaint refers to both S 1029(a)(2), which establishes
the substantive offense of credit card fraud, andS 1029(b)(2), which
specifies a separate sentencing scheme for conspiracy to commit a
violation of S 1029(a), and therefore incorporates substantive elements of
S 1029(a). Dixon was charged with two counts of conspiracy to commit
credit card fraud, in violation of S 1029(b)(2). He was never charged with
violation of the substantive offense of credit card fraud under
S 1029(a)(2) standing alone.

                                3


subject to the District Court’s approval, that Dixon’s
recognition and acceptance of responsibility would yield a 2
level decrease in offense level under U.S.S.G. S 3E1.1(a). For
his timely notice of his intent to plead guilty, the
Government agreed to recommend that Dixon receive an
additional 1 level reduction if his Guidelines offense level
was 16 or greater.

Dixon waived indictment in February, 2001, and
proceeded to enter a guilty plea to each of the one-count
Informations in which he was charged. At his plea hearing,
Dixon was informed that he faced a statutory maximum
penalty of 20 years’ imprisonment for each count to which
he was pleading guilty, for a total maximum sentence of 40
years.

At sentencing, the District Court granted Dixon’s motion
to maintain the loss amount at under $1.5 million.
Accordingly, the court found that the base offense level of
6 should be increased by 11 levels, in accordance with the
plea agreement, rather than 12 level increase which would
have resulted from the loss amount calculated in the pre-
sentence report. The court then applied a 6 level upward
adjustment under U.S.S.G. S 3B1.1(a) and (b), finding that
Dixon was an organizer or leader of five or more
participants and that he was involved in more than
minimal planning. The court then granted a 3 level
reduction based on Dixon’s acceptance of responsibility.
These adjustments yielded a total offense level of 20 and a
criminal history category of V which resulted in a
sentencing range of 63-78 months. The District Court
ultimately imposed a custodial sentence of two concurrent
terms of 75 months.

Dixon filed a timely Notice of Appeal. In the course of
preparing what appellate counsel anticipated would be an
Anders brief, counsel re-read the charging statute and
discovered for the first time that Dixon had been
misadvised at various stages of his case, including the plea
hearing, as to his maximum statutory exposure. Because
no one discovered this error until appeal, Dixon did not
raise this issue before the District Court.

The Government and defense counsel now agree that an
error was made each time Dixon was informed that he
                                4


faced a maximum penalty of 20 years on each of the counts
to which he pled guilty, and a total of 40 years. Dixon
actually faced a maximum of five years for each of the two
counts, for a total of 10 years.

The District Court had subject matter jurisdiction over
this case under 18 U.S.C. S 3231, and this Court has
jurisdiction over the appeal under 28 U.S.C. S 1291.

II.

Credit card fraud under S 1029(a)(2) carries a maximum
ten year sentence. If the defendant has a prior federal credit
card fraud conviction under this section, S 1029(c)(1)(B)
doubles the statutory maximum to twenty years. Section
1029(b)(2), however, establishes a separate statutory
maximum sentence for conspiracy to engage in credit card
fraud of only one half of the maximum sentence for the
substantive offense. Therefore, conspiracy to commit credit
card fraud carries a maximum term of 5 years, and a
doubled maximum of 10 years if the defendant was
previously convicted of credit card fraud under this statute.2
_________________________________________________________________

2. Section 1029, entitled "Fraud and related activity in connection with
access devices," states in relevant part:

       (a) Whoever-- . . .

       (2) knowingly and with intent to defraud traffics in or uses one or
       more unauthorized access devices during any one-year period,
       and by such conduct obtains anything of value aggregating
       $1,000 or more during that period;

       . . . shall, if the offense affects interstate or foreign commerce, be
       punished as provided in subsection (c) of this section.

       (b) . . . (2) Whoever is a party to a conspiracy of two or more
       persons to commit an offense under subsection (a) of this section, if
       any of the parties engages in any conduct in furtherance of such
       offense, shall be fined an amount not greater than the amount
       provided as the maximum fine for such offense under subsection (c)
       of this section or imprisoned not longer than one-half the period
       provided as the maximum imprisonment for such offense under
       subsection (c) of this section, or both.

       (c) Penalties. --

                                5


The Government, Dixon’s trial counsel, and the District
Court all determined Dixon’s statutory maximum sentence
based on two apparent incorrect understandings: 1) that
the term for conspiracy and the substantive offense were
the same; and 2) that Dixon had a prior federal credit
card conviction under S 1029. Based on these
misunderstandings, the plea agreement clearly stated that
Dixon faced a total maximum sentence of 20 years on each
count, for a total of 40 years. The District Court gave Dixon
the same instruction at the plea hearing. However, under a
correct reading of the statute, the complaint and
Informations, and Dixon’s prior criminal history (namely his
lack of a prior federal credit card fraud conviction), Dixon
faced a maximum of 5 years on each count, for a total of 10
years. Thus, all the parties overstated the maximum
statutory sentence by 30 years.

Defendant now contends that when he was incorrectly
advised of the maximum penalties that he faced, he was
deprived of his right to enter a voluntary and knowing plea,
and that he should therefore be permitted to withdraw his
guilty plea, have his sentence vacated, and have his case
remanded to the District Court. Defendant specifically
argues that the misinformation he was given amounts to a
violation of Federal Rule of Criminal Procedure 11(c)(1).

Rule 11(c)(1) requires, among other things, that a district
court taking a plea advise the defendant of the maximum
jail time he faces if he pleads guilty. It provides that
_________________________________________________________________

       (1) Generally.-- The punishment for an offense under subsection (a)
       of this section is --

       (A) in the case of an offense that does not occur after a conviction
       for another offense under this section --

        (i) if the offense is under paragraph (1), (2), (3), (6), (7), or (10)
       of subsection (a), a fine under this title or imprisonment for not
       more than 10 years, or both . . .

       (B) in the case of an offense that occurs after a conviction for
       another offense under this section, a fine under this title or
       imprisonment for not more than 20 years, or both. . . .

11 U.S.C. S 1029 (emphases added).

                                6


       (c) . . . [b]efore accepting a plea of guilty . . . , the court
       must address the defendant personally in open court
       and inform the defendant of, and determine that the
       defendant understands . . .

       (1) the nature of the charge to which the plea is offered,
       the mandatory minimum penalty provided by law, if
       any, and the maximum possible penalty provided by
       law . . .

Fed. R. Crim. P. 11(c) (emphases added).

A defendant who fails to object to a Rule 11 error before
the District Court, as Dixon failed to do, must satisfy the
plain error standard of review on appeal. United States v.
Vonn, 122 S. Ct. 1043, 1046 (2002). The burden is upon
the defendant to satisfy a four-part test in order to obtain
plain error reversal of a criminal conviction. The defendant
must show that: "(1) an error was committed; (2) the error
was plain, that is, clear and obvious; and (3) the error
affected the defendant’s substantial rights." United States v.
Syme, 276 F.3d 131, 143 (3d Cir. 2002) (internal
quotations omitted). See also United States v. Vazquez, 271
F.3d 93, 99 (3d Cir. 2001) (en banc); United States v.
Reynoso, 254 F.3d 467, 474 (3d Cir. 2001) (citing United
States v. Olano, 507 U.S. 725, 732, 734 (1993)).

In cases where the first three elements are satisfied, an
appellate court may "exercise its discretion to order such a
correction only if the error, ‘seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’ "
United States v. Stevens, 223 F.3d 239, 242 (3d Cir. 2000)
(quoting Olano, 507 U.S. at 734) (internal citations
omitted). The entire record, and not simply the plea
colloquy, should be weighed. Vonn, 122 S. Ct. at 1046.

Both the United States and Dixon agree that the District
Court committed clear and obvious error in misinforming
Dixon as to the statutory maximum sentence he faced.
Indeed, all parties now agree that under a proper reading of
S 1029(b)(2), Dixon faced a statutory maximum of 5 years
on each count, for a total of 10 years. We need not dwell
any further on the first two prongs of the plain error
analysis. This case therefore focuses on the third and
fourth prongs of the plain error test.

                                7


This Court has interpreted the third prong’s requisite
showing of impact upon substantial rights to require a
demonstration of prejudice by the defendant. " ‘Affected
substantial rights’ in the context of plain error review ‘in
most cases . . . means that the error must have been
prejudicial: It must have affected the outcome of the district
court proceedings.’ " United States v. Knobloch, 131 F.3d
366, 370 (3d Cir. 1997) (quoting Olano, 507 U.S. at 734). In
this context, the defendant must prove that, were it not for
the plain error committed by the District Court at the time
of his plea, the outcome of the proceedings would have
been different. In other words, Dixon must show that he
would have pled not guilty if he was correctly told the
maximum sentence, and not merely that there may or may
not have been a prejudicial impact and that he might have
not pled guilty. See, e.g., Vazquez, 271 F.3d at 104
(requiring defendant in plain error case to prove prejudice
by showing that his sentence would have been different
absent the court’s error); Reynoso, 254 F.3d at 475 (stating
that "[t]he dispositive question is whether Reynoso has
shown that the error ‘affected the outcome of the district
court proceedings’ "); United States v. Nappi, 243 F.3d 758,
770 (3d Cir. 2001) ("Nappi must convince us that, had he
known that the District Court was going to rely on the state
PSI, he would have done something by way of argument or
proof relating to the document that probably would have
impacted upon the Court’s sentence."); United States v.
Cleary, 46 F.3d 307, 310 (3d Cir. 1995) (stating that the
defendant "must show that he was prejudiced by the error,
i.e., that he did not understand the consequences of his
plea or that, if he had been properly advised about the
effect of special parole, he would not have pled guilty.")
(emphasis added).

When assessing prejudice in the context of a plea, we
must "determine if, given the entire record (including the
defendant’s individualized circumstances, criminal record,
role in the offense, and concession for pleading guilty), it
affirmatively appears [ ] likely that th e error materially
hampered his or her ability to assess the risks and benefits
of pleading guilty." United States v. Powell , 269 F.3d 175,
185 (3d Cir. 2001) (emphasis added). Here, we are not
persuaded that but for the error made in determining his

                                8


maximum statutory sentence, Dixon’s choice to plead guilty
would have been any different.

Defendant’s brief contains numerous assertions claiming
that had he "known [the true sentence he faced], he may
have chosen to present his case to a jury." Def. Br. at 8
(emphasis added). Defendant’s counsel also states in his
reply brief that he wishes to "withdraw his plea and
presumably take his chances at trial." Def. Rep. Br. at 6
(emphasis added). Defendant goes so far as to argue that
"there should be a presumption that a defendant might well
have forsaken a guilty plea if he had received accurate
sentencing information, unless there is evidence in the
record that suggests otherwise." Id. at 4 (citing, inter alia,
United States v. Gigot, 147 F.3d 1193, 1199 (10th Cir.
1998)). However, Dixon never clearly and unmistakably
asserted that had he been correctly informed of the
sentence he faced, he would, in fact, have pled not guilty
and gone to trial. Further, at oral argument this Court
repeatedly asked Dixon’s counsel whether Dixon would
have pled not guilty. Every time, counsel demurred and
only suggested that Dixon might have pled not guilty.

We believe that Dixon’s statements as to what he might
have done, in the absence of at least some convincing
affirmative assertions as to what he would have done, are
insufficient to demonstrate any actual effect on his
substantial rights. Indeed, the record reveals many reasons
why Dixon would have pled guilty even if he had been
informed of the correct statutory maximum sentence he
faced. In accordance with the plea agreement, Dixon was to
receive a 3 level reduction under the Sentencing Guidelines
for his acceptance of responsibility. Additionally, the
Government agreed that it would not seek more than an 11
level increase in Dixon’s base offense level under the
Guidelines even though the total loss to victims qualified
Dixon for a 12 level increase.

Perhaps most importantly, the Government promised that
no additional charges in connection with the credit card
fraud schemes would be brought against him by the United
States Attorney’s Offices in the two jurisdictions in which
he had been charged. The pre-sentence report identifies at
least five other instances in which the defendant used one

                                9


or more credit cards to acquire $1,000 or more within a
one-year period. On each of the five potential additional
counts, Dixon could face 10 years for each substantive
offense, or five years each for conspiracy. 18 U.S.C.
S 1029(a)-(c). These charges could therefore have subjected
Dixon to as much as 50 years in addition to the time faced
on the current charges. It thus appears to us that, among
other reasons, Dixon pled guilty early in this case to avoid
two separate indictments in two jurisdictions on multiple
substantive offenses as well as multiple conspiracy counts.

Based on the totality of the record and the lack of any
affirmative representations that Dixon would have pled not
guilty if he was properly informed at the time of his plea,
we are unable to conclude that the correct information
would have changed Dixon’s decision and thereby affected
the outcome of the proceedings. Thus, we find no showing
of prejudice here.

Even if we were to presume that the error in this case
affected Dixon’s substantial rights, he cannot establish that
"the error ‘seriously affected the fairness, integrity or public
reputation of judicial proceedings.’ " United States v. Wolfe,
245 F.3d 257, 262 (3d Cir. 2001) (quoting United States v.
Turcks, 41 F.3d 893, 897 (3d Cir. 1994)). We believe it
highly unlikely that Dixon would forgo the benefits he
received in the plea agreement in this case to go to trial and
run the risk of a conviction and a lengthy sentence. The
evidence of Dixon’s guilt in this case is overwhelming. He
was sentenced to 6.25 years total, whereas if he goes to
trial on all possible charges, he could face at least 50 years.
Under these circumstances, even if we assumed prejudice,
we would decline to exercise our discretion to notice plain
error in this case.

III.

While we do not find plain error, the Government has
identified an additional issue that defense counsel has not
raised, but which requires us to remand this case to correct
Dixon’s sentence.

Dixon was sentenced to 75 months concurrently on each
count. However, under the correct reading of S 1029, Dixon

                                10


faced a statutory maximum of only 60 months on each
count. Because the District Court’s sentence illegally
exceeded the statutory maximum of 60 months (5 years) on
each count, we must remand this case for the sole, limited
purpose of permitting the District Court to resentence
Dixon in accordance with the applicable statute as well as
with the applicable Guideline provisions. In any case, the
sentence should not exceed the total of 75 months to which
Dixon was first sentenced.

IV.

For the aforementioned reasons, we decline to notice
plain error with respect to Defendant’s plea. However, we
REMAND the case to the District Court for the limited
purpose of correcting the judgment of sentence in
accordance with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                11
