United States v. Robert F. Dixon, Jr.

Case: 17-10293 Date Filed: 08/18/2017 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-10293 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cr-00101-LMM-JSA-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERT F. DIXON, JR.,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(August 18, 2017)

Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:  Case: 17-10293 Date Filed: 08/18/2017 Page: 2 of 6

Robert Dixon appeals his below-Guidelines sentence of 34 months’

imprisonment for wire fraud, conspiracy to commit wire fraud, and falsely using

Social Security numbers with the intent to deceive. Mr. Dixon contends that his

sentence is procedurally unreasonable because the district court based it on a

clearly erroneous understanding of the record. Following a review of the record

and the parties’ briefs, we affirm.

I

After the district court announced the sentence, Mr. Dixon’s trial counsel

lodged “an objection for the record . . . on substantive reasonableness.” D.E. 89 at

24. Because Mr. Dixon failed to object specifically to his sentence’s procedural

reasonableness, see Br. of Appellant at 11 (admitting that “counsel did not

specifically make a procedural unreasonableness objection”), we review his appeal

for plain error. See United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.

2014) (reviewing for plain error when defendant fails to object to procedural

reasonableness). See also United States v. Gallo-Chamorro, 48 F.3d 502, 507

(11th Cir. 1995) (“an objection on other grounds will not suffice”).

To establish plain error, Mr. Dixon must show that “(1) there is an error; (2)

that is plain or obvious; (3) affecting [his] substantial rights in that it was

prejudicial and not harmless; and (4) that seriously affects the fairness, integrity or

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public reputation of the judicial proceedings.” United States v. Hall, 314 F.3d 565,

566 (11th Cir. 2002).

II

Mr. Dixon argues that the district court committed a “significant procedural

error” by “selecting a sentence based on clearly erroneous facts.” Gall v. United

States, 552 U.S. 38, 51 (2007). According to the presentence report, which the

district court adopted, Mr. Dixon and his codefendants made up 1,400 Social

Security numbers to obtain credit cards and defraud a bank. Thirty of those,

apparently unbeknown to them, corresponded to real people.

In his colloquy, Mr. Dixon said his crime was victimless. The district court,

responding to his comment, described his offense in the following manner:

Now, I do not agree with what you said that this was a victimless crime. Because even though this isn’t a violent crime, people have their identity stolen. Some of these numbers were maybe made up, but a lot of these numbers attach themselves to real people. And real people have problems with you having done this. You have a company that is victimized because they lost money. . . . [T]here is a victim here, and that’s something that I think it’s important for you to understand.

D.E. 89 at 18. Mr. Dixon contends that this was a clearly erroneous

characterization of his offense. We disagree.

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The district court’s statement is supported by the record. Reflecting on

Mr. Dixon’s contention that his crime was victimless, the court correctly pointed

out that there was at least one victim, and possibly several. That victim, as

identified by the district court, was the “company that . . . lost . . . money [to

Mr. Dixon and his codefendants].” Id. at 18. This was a direct reference to the

bank Mr. Dixon defrauded.

No one, not even Mr. Dixon, seriously disputes that the bank was, in the

district court’s own words, “victimized.” Id. Instead, Mr. Dixon’s challenge is

really about the district court’s comments concerning the thirty individuals whose

Social Security numbers he used to defraud the bank.

Mr. Dixon first argues that the district court erred by stating that those

people “have problems with [his crime].” D.E. 89 at 18. He seems to think they

had no quarrel with his crime because, as he reads the presentence report, they

failed to identify “any problems” when contacted by law enforcement. See Br. of

Appellant at 11.

This is a misinterpretation of both the district court’s statement and the

presentence report. According to the presentence report, when contacted by law

enforcement, those thirty individuals “failed to indicate they suffered a financial

loss.” Pre-Sentence Report at 7. Failing to identify a financial loss is different

than having no problem with Mr. Dixon’s actions, which is all the district court

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said. It also does not mean that those people were not victims in some other sense

of the word. See, e.g., 2 Shorter Oxford English Dictionary 3533 (5th ed. 2002)

(defining “victim” as “a person subjected to . . . unfair treatment”).

Mr. Dixon’s second argument concerns the district court’s use of the

modifiers “some” and “lot” when describing the amount of Social Security

numbers corresponding to real people. He says the district court overemphasized

the number of real people that were harmed. See Br. of Appellant at 10–11

(arguing that 1,370 out of 1,400 numbers cannot be characterized as “some”).

Mr. Dixon reads too much into the words “some” and “lot.” Those

modifiers simply refer to an unspecified number of things or people. See 1 Shorter

Oxford English Dictionary 1638–39 (5th ed. 2002); 2 Shorter Oxford English

Dictionary 2919 (5th ed. 2002). And that is how the district court used them. In

any event, failing to use the most precise language possible does not constitute

plain error when, as here, nothing in the record demonstrates that the district court

otherwise failed to comprehend the full factual context or nature of Mr. Dixon’s

crime.

III

The district court statements Mr. Dixon challenges do not show that the

district court erroneously relied on facts not in the record, or that the court failed to

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understand the circumstances of the offense. We therefore find no plain error and

affirm Mr. Dixon’s sentence.

AFFIRMED.

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