2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-18-2015

USA v. Dante Dixon

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Recommended Citation

"USA v. Dante Dixon" (2015). 2015 Decisions. Paper 264.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 14-2681

_____________

UNITED STATES OF AMERICA

v.

DANTE G. DIXON,

 Appellant 

_____________

Appeal from the United States District Court

for the District of New Jersey

(No. 2:13-cr-00806-001)

District Judge: Honorable William J. Martini

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 12, 2015

Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges.

(Filed: March 18, 2015)

____________

OPINION*

____________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

CHAGARES, Circuit Judge.

Dante Dixon pled guilty to conspiracy to commit wire fraud and was sentenced to 

thirty-seven months of imprisonment on April 30, 2014.

1

 He appeals the judgment of 

sentence, arguing that the District Court erred by varying upward from the offense level 

calculated in his Presentence Report. For the following reasons, we will affirm the 

decision of the District Court. 

I.

We write solely for the parties and therefore recite only the facts that are necessary 

to our disposition. Dixon and a conspirator impersonated corporate executives to induce 

companies to extend lines of credit to them. Using this scheme, they received over 

$220,000 in goods and services for which they never paid. Dixon was caught and pled 

guilty to conspiracy to commit wire fraud on December 17, 2013, pursuant to a written 

plea agreement.

At sentencing, Dixon argued that his criminal history category had been 

incorrectly calculated and argued that a sentence at the bottom of the range prescribed by 

the advisory Sentencing Guidelines was appropriate. The Government argued that the 

criminal history category was correct and sought a sentence near the top of the Guidelines

range. Pursuant to the plea agreement, neither party requested a departure. 

The District Court considered and rejected Dixon’s argument regarding his 

criminal history, and Dixon does not appeal that decision. The District Court went on to 

 

1 The judgment of sentence was amended twice, for clerical reasons, and the latest, 

operative judgment was entered on May 30, 2014. App. 8.
3

consider Dixon’s extensive criminal history, including the fact that he had perpetrated

two fraudulent schemes while on supervised release from an earlier sentence for credit 

card fraud and that Dixon committed the instant offense just before he was set to 

surrender for the second violation of his supervised release. At sentencing, the District 

Court found that the insufficient deterrent effect of Dixon’s prior sentences, his lack of 

apparent remorse, and the need to protect the public justified a one-point upward 

variance. Dixon was sentenced to thirty-seven months of imprisonment — the top of the 

Guidelines range given the increased offense level.2

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have 

jurisdiction pursuant to 18 U.S.C. § 3742(a). We review a district court’s sentence for 

abuse of discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). 

III.

Our review of a criminal sentence proceeds in two steps. First, we examine 

whether the district court committed a significant procedural error. Id. Then we consider 

whether the sentence imposed is substantively reasonable. Id. Our responsibility is thus 

“to ensure that a substantively reasonable sentence has been imposed in a procedurally 

fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008).

Dixon raises claims of both procedural error and substantive unreasonableness. 

On the procedural front, he argues that the District Court failed to consider his “history 

 

2 This sentence represented a four-month increase above what would have been the top of 

the Guidelines range had the District Court used the offense level as calculated in the 

Presentence Report.
4

and characteristics,” pursuant to 18 U.S.C. § 3553(a)(1), and that its consideration of the 

other § 3553(a) factors was “cluttered.” Dixon Br. 6. It is true that one of the procedural 

requirements for sentencing is that the sentencing court demonstrates “meaningful 

consideration of the relevant statutory factors.” United States v. Grier, 475 F.3d 556, 

571–72 (3d Cir. 2007) (en banc). Also, the sentencing court must “respond to colorable 

arguments with a factual basis in the record.” United States v. Merced, 603 F.3d 203, 

224 (3d Cir. 2010). 

Neither of Dixon’s arguments supports the conclusion that the District Court 

committed a procedural error. The District Court considered Dixon’s history and 

characteristics — it simply did not draw from those considerations the conclusions that 

Dixon would have preferred. For example, Dixon provided materials related to his 

family circumstances and upbringing. The District Court considered these materials and 

was troubled by the fact that Dixon committed these crimes in spite of the fact that he had 

a good upbringing and stable family. Other materials Dixon submitted purporting to 

demonstrate how his “history and characteristics” justified a lower sentence were 

considered in a similar fashion. 

While the District Court did not draw Dixon’s desired conclusion from these 

submissions, the record clearly demonstrates that all of his submissions were fully

considered. Dixon concedes as much in his brief, contending not that the District Court 

failed to review his materials, but rather complaining that it “discredited” his submissions 

when it “could have considered these facts as favorable to him.” Dixon Br. 9. This 
5

amounts solely to a disagreement with the District Court’s conclusion and does not set 

out a reversible procedural error. 

As to Dixon’s second point — that the District Court’s analysis was “cluttered” —

the District Court considered the relevant § 3553(a) factors. Specifically, the District 

Court considered the seriousness of the offense, the need for specific deterrence, and the 

need to protect the public, and it found that the Guidelines range did not “adequately 

address[] the concerns that [the District Court had] under [the] [§] 3553 factors.” 

Appendix (“App.”) 47. The sentencing court need not “discuss and make findings as to 

each of the § 3553(a) factors if the record makes clear the court took the factors into 

account in sentencing.” Tomko, 562 F.3d at 568 (quotation marks omitted). The record 

in this case is clear that the District Court adequately considered all relevant factors in 

imposing sentence and adequately justified the imposition of a small upward variance, 

based primarily on the need to protect the public and the need for increased specific 

deterrence. 

Dixon also lays out a skeletal argument that his sentence was substantively 

unreasonable, premised on the District Court’s rejection of his “efforts toward postoffense rehabilitation,” its acknowledgement that the seriousness of the offense standing 

alone might justify a downward variance, and its statement that the enhanced sentence 

might be insufficient to deter Dixon from committing further crimes. Dixon Br. 10–11. 

“We will affirm a procedurally sound sentence as substantively reasonable ‘unless no 

reasonable sentencing court would have imposed the same sentence on that particular 
6

defendant for the reasons the district court provided.’” United States v. Handerhan, 739 

F.3d 114, 124 (3d Cir. 2014) (quoting Tomko, 562 F.3d at 568). 

First, the District Court considered Dixon’s claimed efforts at post-offense 

rehabilitation, but found those contentions to “ring hollow,” App. 46, largely because 

Dixon committed crimes while on supervised release in the past. It reasonably concluded 

that Dixon had likely made similar self-serving claims of being a changed man to other 

sentencing judges and still reoffended. It also found that he had little genuine remorse, 

which suggests that his claims of post-offense rehabilitation were more opportunistic than 

sincere. We defer to the sentencing court’s evaluation of Dixon’s credibility as “[t]he 

sentencing judge is in a superior position to find facts and judge their import under § 

3553(a) in the individual case. The judge sees and hears the evidence, makes credibility 

determinations, has full knowledge of the facts and gains insights not conveyed by the 

record.” Gall v. United States, 552 U.S. 28, 51 (2007) (quotation marks omitted).

Second, the District Court acknowledged that the seriousness of the crime might 

justify a downward departure only if one did not also take into account Dixon’s 

background and criminal history. The seriousness of the crime is only one of the §

3553(a) factors, and the sentencing court is required to consider all relevant factors and 

balance competing considerations. Considering all the relevant factors, as a sentencing 

court is obliged to do, convinced the District Court that a slight upward variance was 

necessary. See id. (holding that an appellate court must “give due deference to the 

district court's decision that the § 3553(a) factors, on a whole, justify the extent of the 

variance”).
7

Finally, the District Court’s concern that the enhanced sentence might be 

insufficient to deter Dixon is no reason to overturn it in favor of the imposition of a lower

sentence. Considering the record as a whole, Dixon’s sentence was well within the range 

of reasonable sentences, and we certainly cannot conclude that “no reasonable sentencing 

court would have imposed the same sentence.” Tomko, 562 F.3d at 538.

IV. 

For the foregoing reasons, we will affirm the District Court’s judgment of 

sentence.