2002 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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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Recommended Citation

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

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/642
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 presentence 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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