NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-2681
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UNITED STATES OF AMERICA
v.
DANTE G. DIXON,
Appellant
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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)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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.
2
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.
3
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
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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 post-
offense 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
5
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”).
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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.
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