IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-11376

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JIMMY LEE DIXON, 

Defendant - Appellant

************************************************************************

Consolidated with 19-10760

In re: JIMMY LEE DIXON,

 Movant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:97-CR-84-1

Before KING, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 3, 2020

Lyle W. Cayce

Clerk

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Appellant Jimmy Lee Dixon was convicted on five counts related to a 

series of crimes he committed using a short-barreled shotgun, including one 

count of using a firearm during the commission of a crime of violence in 

violation of 18 U.S.C. § 924(c). In calculating Dixon’s guidelines range, the 

district court applied a seven-level weapons enhancement based on Dixon’s 

discharge of the shotgun. The court also imposed a mandatory ten-year 

sentence based on Dixon’s Section 924(c) conviction to run consecutively to his 

sentence on the other counts. Nearly twenty years later, Dixon moved for a 

sentence reduction, arguing the district court impermissibly double-counted 

his guidelines range by applying the weapons enhancement when Dixon was 

already subject to a mandatory Section 924(c) sentence. The district court 

denied the motion and Dixon appealed. We affirm.1 

BACKGROUND

On February 9, 1997, Dixon entered a Veteran Affairs Medical Center 

wielding a short-barreled shotgun, robbed paramedic Janet Shahan, 

attempted to rob paramedic David Dyer, and ultimately kidnapped and raped 

Shahan. Dixon once discharged his shotgun but did not physically injure 

anyone. He was twice tried and convicted on five counts.2

Following his second jury trial,3 Dixon was convicted of (1) robbing 

Shahan by force (“Count One”); (2) attempting to rob Dyer by force (“Count 

Two”); (3) assaulting Dyer with a short-barreled shotgun (“Count Three”); 

1 Dixon has separately moved for leave to file a successive habeas petition. That 

application has been consolidated with this appeal, but we do not now consider it.

2 A previous panel opinion offers a more detailed description of the facts underlying 

Dixon’s conviction. See United States v. Dixon, 185 F.3d 393, 395–97 (5th Cir. 1999) (Dixon 

I). 

3 Dixon’s first conviction was reversed and remanded for a new trial because the 

district court erred in refusing to instruct the jury on Dixon’s insanity defense. See Dixon I, 

185 F.3d at 407.

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(4) using and carrying a short-barreled shotgun during a crime of violence, in 

violation of 18 U.S.C. § 924(c) (“Count Four”); and (5) kidnapping Shahan for 

the purpose of committing aggravated sexual abuse (“Count Five”). Count Five 

served as the underlying crime of violence for Count Four.

Dixon was sentenced for the second time in July 2000. Applying the 

sentencing guidelines effective November 1, 1998, the supplemental 

presentence report (the “PSR”) grouped Counts One, Two, Three, and Five by 

victim. The first group consisted of Counts One and Five, the robbery and 

kidnapping of Shahan, respectively. The second group consisted of Counts Two 

and Three, the attempted robbery and the assault of Dyer, respectively. 

Pursuant to the relevant grouping rules, the PSR used the adjusted offense 

level for the first group in calculating Dixon’s guidelines range because it was 

higher than that of the second group. The base offense level for the first group 

was 20, but the adjusted offense level included multiple enhancements. 

Relevant here, the district court applied a seven-level weapons enhancement 

based on Dixon’s discharge of the short-barreled shotgun. After two additional 

units were added to account for grouping, Dixon was subject to a total offense 

level of 37. See U.S.S.G. § 3D1.4.

That score, combined with Dixon’s criminal history category of 1, 

resulted in a guidelines range of 210 to 262 months of imprisonment on Counts 

One, Two, Three, and Five. The guidelines range on Count Four (the Section 

924(c) count) was a mandatory, consecutive term of 120 months of 

imprisonment. See U.S.S.G. § 2K2.4(a); 18 U.S.C. § 924(c)(1). The district 

court sentenced Dixon to concurrent terms of 262 months of imprisonment on 

Counts One, Two, Three, and Five, and to a consecutive 120-month term on 

Count Four, for a total of 382 months of imprisonment.

On appeal, Dixon argued, inter alia, that the district court impermissibly 

double-counted his shotgun discharge by applying the seven-level weapons 

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enhancement “when he also received a sentence under . . . § 924 for using a 

shotgun during and in relation to the kidnapping.” United States v. Dixon, 

273 F.3d 636, 646 (5th Cir. 2001) (Dixon II). The court rejected this argument, 

holding that the district court had not double-counted in calculating Dixon’s 

guidelines range, but vacated Dixon’s sentence on separate grounds and 

remanded for resentencing.4 Id. at 644. On remand, in 2002, the district court 

recalibrated Dixon’s sentence in accordance with Dixon II and resentenced

Dixon to concurrent terms of 180 months on Counts One and Two, 120 months 

on Count Three, 262 months on Count Five, and a consecutive 120 months on 

Count Four, for a total of 382 months in prison—the same as the previous 

sentence.

In 2017, Dixon moved pro se to reduce his sentence pursuant to 

18 U.S.C. § 3582(c)(2) asserting the same double-counting argument he raised 

in Dixon II. The district court denied the motion. Dixon timely filed a notice 

of appeal, and this court granted Dixon leave to proceed in forma pauperis and 

appointed counsel to represent him.

STANDARD OF REVIEW

A “district court’s decision whether to reduce a sentence is reviewed for 

abuse of discretion,” but “its ‘interpretation or application of the Guidelines is 

reviewed de novo.’” United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009) 

(quoting United States v. Conner, 537 F.3d 480, 489 (5th Cir. 2008)).

DISCUSSION

Dixon challenges the district court’s denial of his Section 3582(c)(2) 

motion to modify his sentence. Section 3582(c)(2) permits the discretionary 

modification of a defendant’s sentence in certain cases in which the defendant’s 

4 The court held that Dixon’s sentences on Counts One, Two, and Three exceeded the 

relevant statutory maximum sentences. Id.

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guidelines range has been subsequently lowered by a retroactively applicable 

amendment to the sentencing guidelines. Doublin, 572 F.3d at 237.

The inquiry is two-fold. First, the district court must determine whether 

the defendant is eligible for a reduction. Dillon v. United States, 560 U.S. 817, 

826, 130 S. Ct. 2683, 2691 (2010). If an amendment “does not have the effect 

of lowering the defendant’s applicable guideline range,” a reduction is not 

authorized by Section 3582(c)(2). U.S.S.G. § 1B1.10(a); 18 U.S.C. § 3582(c)(2). 

Second, if the district court finds that a defendant is eligible for a reduction, 

the court must determine whether the reduction is warranted. Dillon, 

560 U.S. at 827, 130 S. Ct. at 2692. “Reductions . . . are not mandatory; 

[Section 3582(c)(2)] gives the district court discretion to reduce a sentence 

under limited circumstances” set forth in 18 U.S.C. § 3553(a). Doublin, 

572 F.3d at 238.

Our analysis begins and ends at the first step. Dixon repackages his 

unsuccessful argument from Dixon II in Section 3582(c)(2) terms. He argues 

he is eligible for a sentence reduction because Amendment 599 to the 

sentencing guidelines—which went into effect after Dixon’s 2000 sentencing, 

while Dixon II was pending—retroactively lowered his guidelines range by 

prohibiting the district court’s application of a weapons enhancement for his 

discharge of a shotgun when he also received a mandatory sentence under 

18 U.S.C. § 924(c) for using the shotgun during the kidnapping.

Dixon II rejected this argument, holding that, under Amendment 599,

“no double counting occurred when the district judge applied the weapon 

enhancements in calculating defendant’s offense levels for the robbery and 

attempted robbery convictions.” 273 F.3d at 644. At the time of Dixon’s 1999 

and 2000 sentencings, application note 2—the precursor to Amendment 599—

provided that when a defendant is sentenced for a Section 924(c) offense, “any 

specific offense characteristic for the possession, use, or discharge of a . . . 

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firearm . . . is not to be applied in respect to the guideline for the underlying 

offense.” U.S.S.G. § 2K2.4 cmt. n.2 (1991). Thus, before Amendment 599, the 

guidelines prohibited the application of a weapons enhancement to the offense 

underlying a Section 924(c) conviction. See United States v. Bowman, 

632 F.3d 906, 910–11 (5th Cir. 2011). In 2000, the Sentencing Commission 

enacted Amendment 599, which clarified that application note 2 prohibits the 

application of a weapons enhancement, not just to the underlying Section 

924(c) offense, but also to conduct underlying a separate offense that is “within 

the scope of relevant conduct for the underlying [Section 924(c)] offense.”5 

U.S.S.G. § 2K2.1, cmt. n.2, Am. 599.

Dixon argues we should overturn Dixon II and hold that Amendment 599 

prohibits the application of a weapons enhancement to his robbery counts 

because the conduct underlying his robbery counts is relevant to his predicate 

Section 924(c) kidnapping count.6 We are bound, however, by the rule of 

orderliness, which provides that “one panel of our court may not overturn 

another panel’s decision, absent an intervening change in the law, such as by 

a statutory amendment, or the Supreme Court, or our en banc court.” Jacobs 

v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008). “Indeed, even 

if a panel’s interpretation of the law appears flawed, the rule of orderliness 

prevents a subsequent panel from declaring it void.” Id.; see also Barber v. 

Johnson, 145 F.3d 234, 237 (5th Cir. 1998) (“Even if persuaded that [our prior 

5 Amendment 599 applies retroactively. See id. § 1B1.10(d).

6 Dixon also argues he is eligible for a sentence reduction because the enhancement 

was applied to the kidnapping count. We disagree. The enhancement was applied pursuant 

to Section 2B3.1 of the guidelines, which governs enhancements to robbery convictions. And

even if the enhancement was applied to the kidnapping count, that application was 

proscribed by the pre-Amendment 599 guidelines, and Amendment 599 did not affect that 

rule. See United States v. Bowman, 632 F.3d 906, 910–11 (5th Cir. 2011). Thus, even if Dixon 

is correct, he would not be eligible for a sentence reduction. See id.

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panel opinion] is inconsistent with [an earlier Supreme Court opinion], we may 

not ignore the decision, for in this circuit one panel may not overrule the 

decision of a prior panel.”). The rule applies even when, as here, there are 

multiple appeals within the same case. See K.P. v. LeBlanc, 729 F.3d 427, 438 

(5th Cir. 2013) (“We cannot reach the merits of this claim; our rule of 

orderliness compels us to abide the interpretation of state law pronounced in 

[K.P. v. LeBlanc, 627 F.3d 115 (5th Cir. 2010)].”). Dixon points to no 

intervening change in the law since Dixon II. Amendment 599 was enacted 

before Dixon II was issued, and we are bound by that panel’s application of it. 

Dixon is not therefore eligible for a sentence reduction.

For the foregoing reasons, the district court’s denial of Dixon’s 

Section 3582(c)(2) motion is AFFIRMED.

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