                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"USA v. Dixon" (2003). 2003 Decisions. Paper 799.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/799


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                                                                          NOT PRECEDENTIAL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



                                                       2
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

                                                       3
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

                                                      4
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

                                                        5
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).

                                                     6
______________________




            BY THE COURT:

            /s/ Edward R. Becker

            Chief Judge




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