United States v. Jimmy Dixon

Case: 17-11376 Document: 00515371714 Page: 1 Date Filed: 04/03/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-11376
FILED
April 3, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 17-11376
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.
2
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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.
4
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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 . . .
5
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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.
6
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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.
7