In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-3225

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEANGELO D. DIXON,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Central District of Illinois.

No. 13-cr-40023-001 — Sara Darrow, Judge.

____________________

ARGUED MAY 29, 2015 — DECIDED JUNE 23, 2015

____________________

Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge. Deangelo Dixon was convicted of two armed bank robberies, 18 U.S.C. §2113(d), and 

sentenced to life in prison. A life sentence is mandatory under 18 U.S.C. §3559(c)(1)(A) because Dixon’s criminal record 

includes multiple prior convictions for robbery, which 

§3559(c)(2)(F)(ii) classifies as “serious violent felonies” because each of his prior convictions was for a crime that had 
2 No. 14-3225

the threat of violence as an element and a maximum term of 

at least 10 years’ imprisonment.

Dixon contends that the prosecutor violated the rule of

Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing before trial that one witness had seen his photograph, presented in a way that his lawyer deems suggestive. This came out 

at trial, and Dixon’s lawyer did not recall the witness or present any other evidence based on the photograph. Still, Dixon now contends, the disclosure requirement of Brady has 

been violated because the disclosure occurred during rather 

than before trial. This contention is a nonstarter, because

Brady is a disclosure requirement rather than a discovery requirement. See, e.g., United States v. Ruiz, 536 U.S. 622 (2002); 

Evans v. Circuit Court, 569 F.3d 665 (7th Cir. 2009). Because 

this potentially exculpatory fact was disclosed in time to be 

used at trial, Brady has been satisfied. (Dixon does not contend that the United States failed to furnish any discovery 

material required by an order under Fed. R. Crim. P. 16.)

Sentencing is the main event on appeal. Dixon contends 

that his sentence violates the Constitution because his prior 

convictions were not introduced into evidence at trial and 

considered by the jury. That argument runs smack into Almendarez-Torres v. United States, 523 U.S. 224 (1998), which 

we must apply unless the Justices themselves change course. 

See United States v. Shields, No. 13-3726 (7th Cir. June 15, 

2015), slip op. 8–11. Dixon has preserved this argument for 

further review.

A more promising argument is that the conviction should 

have been under §2113(a) (bank robbery by intimidation) 

rather than §2113(d) (violation of §2113(a) by using a dangerous weapon or device). In one robbery Dixon waved at 
No. 14-3225 3

tellers a bag containing a stiff object and threatened them, 

saying “Five seconds or I’m gonna shoot”. In the other Dixon brandished an object with a long barrel and directed a 

teller to “give him the money or he would shoot”. The object 

in both robberies was not a gun but a butane lighter with a 

long barrel. Here’s a picture of a lighter similar to the ones 

Dixon used (which the parties inexplicably omitted from

their briefs and the appellate record):

Two lighters were seized from Dixon; one looked just like 

this, and the other was only a little different. Dixon insists 

that a lighter cannot be a “dangerous weapon or device,” no 

matter what assumption the tellers made about what was in 

the bag or attached to the barrel.

A long-neck lighter may not be a “weapon,” but it could 

be thought a “dangerous ... device”. This sort of lighter is 
4 No. 14-3225

designed to reach into fireplaces or charcoal grills to start 

fires. It equally could burn a teller’s face or hands. (Dixon 

pressed the barrel against one teller’s neck when making a 

threat.) Yet the United States did not argue to the jury, or to 

us, that a lighter is a dangerous “device.” Instead it maintains that it should be treated as a dangerous “weapon,” because the tellers might have thought it to be one, and the 

bank’s guards might have opened fire.

The statutory question, however, is whether the bank 

robber used a “dangerous weapon or device” rather than 

whether a guard or teller mistook a harmless device for a 

weapon. That would be clear enough if Dixon had placed his 

hand in his pocket with his finger extended to simulate the 

barrel of a pistol, or if he had used six inches of wooden 

dowel sawed from the end of a broomstick to simulate a 

hidden gun barrel. If the lighter risked gunfire, so might a 

finger in a pocket or a dowel in a pocket or a water pistol in 

a pocket or even a kielbasa in a pocket.

McLaughlin v. United States, 476 U.S. 16 (1986), gives three 

reasons why an unloaded handgun is a “dangerous weapon” under §2113(d): first, every firearm is potentially dangerous; second, it instills fear in those at which it is pointed; 

third, it can cause injury when used as a bludgeon. None of 

these things is true about a kielbasa. A hidden stiff object, 

plus a threat, may lead to fear, but fear differs from a “dangerous weapon or device”. One decision stated that a toy 

looking to observers like a real gun might be a “dangerous 

weapon” because of its fear-inducing potential, see United 

States v. Hargrove, 201 F.3d 966, 968 n.2 (7th Cir. 2000), but 

we have never held this. We are skeptical; the statute requires a dangerous weapon or device rather than something 
No. 14-3225 5

a teller believes incorrectly to be dangerous (what if a teller 

was terrified of rabbits?); but we need not decide because 

Dixon did not wield a firearm look-alike.

Because §2113(a) is a lesser included offense of §2113(d), 

we modify the judgment to change the statutory citation, 

which may conceivably affect Dixon’s conditions of confinement or the terms of his release should the President 

commute his life sentence. But the modification does not reduce that sentence, because §3559(c)(1)(A) requires a life sentence for someone with Dixon’s record who is convicted of 

another “serious violent felony”. Section 3559(c)(2)(F)(i) then 

defines “serious violent felony” to include “robbery (as described in section 2111, 2113, or 2118)”. Not §2113(d), in particular, or §2113(e) (bank robbery that includes kidnapping 

or ends in death), but any part of §2113. Bank robbery by 

verbal intimidation (§2113(a)) leads to a life term in recidivist sentencing under §3559(c) just as much as bank robbery 

by intimidation using a weapon.

We asked the parties to file supplemental briefs after argument to address the question whether Dixon might be entitled to the affirmative defense under §3559(c)(3)(A), which 

provides that a robbery does not count as a “serious violent 

felony” if the defendant establishes by clear and convincing 

evidence that “no firearm or other dangerous weapon was 

used in the offense and no threat of use of a firearm or other 

dangerous weapon was involved in the offense” and that no 

injury ensued. Dixon did not attempt to meet this standard 

in the district court, and understandably so. Our conclusion 

about the butane lighter means that no firearm was used in 

his bank robberies, and the prosecutor does not contend that 

anyone was injured, but Dixon threatened to use a firearm. 
6 No. 14-3225

We held in United States v. Washington, 109 F.3d 335, 337 (7th 

Cir. 1997), that “I have a gun” on a demand note prevents

use of the affirmative defense in §3559(c)(3)(A)(i). Dixon’s 

statements were more graphic.

Dixon’s supplemental brief calls the tellers’ testimony 

“highly suspect” or “not credible” because they did not 

agree among themselves on exactly what he said, and the 

threatened tellers could not positively identify him (the robber was wearing a mask). Dixon says that he was misidentified as the robber. But the jury rejected that defense, and attempts to dispute the tellers’ stories do not meet the statutory standard, which requires “clear and convincing” evidence 

that no threats were made. There was only one robber and if,

as the jury found, Dixon was that robber, then he was also 

the person who uttered the threats.

The judgment is modified to rely on §2113(a) rather 

than §2113(d) and as so modified is affirmed.