USA v. Tabitha Dixon

Filing

Opinion issued by court as to Appellant Tabitha Dixon. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 13-13496

Date Filed: 09/19/2014

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13496
Non-Argument Calendar
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D.C. Docket No. 3:06-cr-00062-MCR-CJK-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TABITHA DIXON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 19, 2014)
Before WILLIAM PRYOR, MARTIN, and FAY, Circuit Judges.
PER CURIAM:

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Tabitha Dixon, a federal prisoner proceeding pro se, appeals the district
judge’s denial of her 18 U.S.C. § 3582(c)(2) motion to reduce sentence. We
affirm.
I. BACKGROUND
In June 2006, Dixon pled guilty to conspiracy to distribute and possess with
intent to distribute 500 or more grams of cocaine and 5 or more grams of crack
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846 (Count 1); and
using and carrying a firearm during and in relation to, and possessing a firearm in
furtherance of, a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(Count 2). Dixon’s presentence investigation report (“PSI”), which applied the
2005 Sentencing Guidelines Manual, assigned her a base offense level of 38 for
Count 1, under U.S.S.G. § 2D1.1(c), because she was accountable for 2.8
kilograms of cocaine base. The PSI awarded a 3-level acceptance-of-responsibility
reduction under U.S.S.G. § 3E1.1, which yielded a total offense level of 35. The
PSI assigned a criminal history category of I, which yielded a Sentencing
Guidelines range of 168-210 months of imprisonment as to Count 1. Dixon was
subject to a consecutive term of 5 years to life on Count 2, under § 924(c)(1)(A)(i).
The district judge adopted the PSI Guidelines calculations and departed
downward from the Guidelins range, based on Dixon’s substantial assistance to the
government, under U.S.S.G. § 5K1.1. On each count, the judge imposed
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consecutive 60-month sentences, the mandatory minimums, for a total sentence of
120 months.
In 2008, Dixon moved to reduce her sentence under § 3582(c)(2), based on
Amendment 706 to the Sentencing Guidelines. The district judge denied Dixon’s
motion, because, based on the facts underlying Dixon’s original sentence,
including her substantial assistance, the judge would not have reduced her sentence
below 120 months even after applying Amendment 706.
In November 2011, Dixon filed the § 3582(c)(2) motion on appeal, based on
Amendment 750 to the Sentencing Guidelines. Dixon asserted her § 5K1.1
reduction had resulted in an initial sentence 67% below her original Guidelines
range. She requested a comparable reduction below her amended Guidelines
range, and argued that denying a further reduction would effectively lessen the
benefit of her prior substantial-assistance reduction. In her § 3582(c)(2) motion,
Dixon also discussed her various efforts toward rehabilitation. The district judge
denied Dixon’s motion, because Amendment 750 did not result in a change to
Dixon’s Guidelines range.
On appeal, we vacated and remanded for the district judge to reconsider
whether Dixon was entitled to a sentence reduction comparable to the reduction
she received under § 5K1.1. United States v. Dixon, 507 F. App’x 880, 881, 883
(11th Cir. 2013) (per curiam). We concluded the district judge clearly had erred,
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when she determined Amendment 750 did not have the effect of reducing Dixon’s
guideline range. Id. at 883. Had Amendment 750 been in effect at the time of
Dixon’s sentencing, her total offense level would have been 33, which would have
yielded a 135-to-168-month Guidelines range. Id. We noted that, on remand, the
district judge could determine a further reduction below the sentence Dixon
received for her substantial assistance was not warranted based on the facts of her
case. Id.
On remand, the district judge again denied Dixon’s § 3582(c)(2) motion.
The judge noted she was “impressed by and applaud[ed]” Dixon’s “substantial and
meaningful” post-sentencing rehabilitative efforts, and the judge encouraged Dixon
“to remain on a positive path toward reentry.” ROA at 328. The judge
acknowledged Amendment 750 reduced Dixon’s guideline range to 135-168
months. The judge concluded, however, the facts and circumstances of Dixon’s
case, including those pertaining to Count 2, warranted a 120-month sentence,
particularly after considering Dixon’s co-conspirators’ sentences. The judge
further determined a 60-month sentence on Count 1 remained sufficient, but not
greater than necessary, to comply with the purposes of sentencing under 18 U.S.C.
§ 3553(a).
On appeal, Dixon argues the district judge erred by failing to consider
Dixon’s eligibility for both a § 5K1.1 reduction and a reduction based on
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Amendment 750. According to Dixon, the denial of her § 3582(c)(2) motion
dilutes her prior § 5K1.1 reduction and results in inequality between this circuit
and circuits in which defendants received § 5K1.1 reductions resulting in sentences
below the mandatory minimums. Dixon also contends she was eligible for a
sentence reduction based in part on the Fair Sentencing Act of 2010 (“FSA”), Pub.
L. No. 111-220, 124 Stat. 2372.
II. DISCUSSION
We review a district judge’s decision not to reduce a sentence under
§ 3582(c)(2) for abuse of discretion. United States v. Mills, 613 F.3d 1070, 107475 (11th Cir. 2010). Under § 3582(c)(2), a judge may modify a term of
imprisonment that was based on a sentencing range that subsequently has been
lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The purpose of
§ 3582(c)(2) is to give a defendant an opportunity to receive the same sentence she
would have received if the Guidelines that applied at the time of her sentencing
had been the same as after the amendment. United States v. Glover, 686 F.3d
1203, 1206 (11th Cir. 2012); see also United States v. Hamilton, 715 F.3d 328, 340
(11th Cir. 2013) (explaining that eligibility for a § 3582(c)(2) reduction based on
Amendment 750 turns on whether a defendant “would have had a lower guidelines
range had Amendment 750 been in effect at the time he was sentenced”).

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Where a Guidelines amendment reduces a defendant’s Guidelines
sentencing range, the district judge must decide whether, in light of the § 3553(a)
factors, the judge should exercise her discretion to impose a newly calculated
sentence under the amended Guidelines. Hamilton, 715 F.3d at 337. A district
judge need not articulate specifically the applicability of each § 3553(a) factor, as
long as the record shows the pertinent factors were taken into account by the judge.
Id. at 338.
Amendment 750, which re-promulgated Amendment 748, effectively
reduced the offense levels previously applicable to offenses involving various
amounts of cocaine base. See U.S.S.G. App. C, Amends. 748, 750; compare
U.S.S.G. § 2D1.1(c)(2) (2011) (assigning a base offense level of 36 to offenses
involving at least 2.8 kilograms but less than 8.4 kilograms of cocaine base), with
U.S.S.G. § 2D1.1(c)(1) (2006) (assigning a base offense level of 38 to offenses
involving at least 1.5 kilograms but less than 5 kilograms of cocaine base). The
FSA, which lowered the statutory minimum sentences for various cocaine-base
offenses, does not apply to defendants who originally were sentenced before its
August 3, 2010, enactment. United States v. Berry, 701 F.3d 374, 377 (11th Cir.
2012) (per curiam).
Dixon has not shown the district judge abused her discretion in denying
Dixon’s § 3582(c)(2) motion. See Mills, 613 F.3d at 1074-75. The judge correctly
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concluded Amendment 750 lowered Dixon’s guideline range to 135-168 months of
imprisonment. See U.S.S.G. § 2D1.1(c) (2011). The judge stated she had
considered the § 3553(a) factors, including the facts and circumstances of Dixon’s
case, her substantial rehabilitative efforts, and the sentences of her co-conspirators.
Although the judge did not refer explicitly to Dixon’s substantial assistance, the
record does not suggest the judge did not consider this factor, given that the
§ 3582(c)(2) motion was decided by the same district judge, who (1) imposed
Dixon’s initial sentence and (2) discussed Dixon’s substantial assistance in the
order denying her 2008 § 3582(c)(2) motion. Dixon has alleged no facts
supporting her suggestion the denial of the § 3582(c)(2) motion resulted in
unwarranted disparities between her and other defendants with similar records who
were convicted of similar conduct, in this or other circuits. See 18 U.S.C.
§ 3553(a)(6) (instructing sentencing judges about “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct”).
Finally, Dixon’s argument as to the FSA has no bearing on her case, because
the FSA does not apply to defendants, like Dixon, who initially were sentenced
before its August 2010 enactment. See Berry, 701 F.3d at 377. Accordingly, we
affirm the denial of Dixon’s § 3582(c)(2) motion.
AFFIRMED.
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