United States v. Dixon

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Precedential or Non-Precedential: Precedential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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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.

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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.

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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

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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. --

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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).

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(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.

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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

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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

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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

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