US v. Michael Dixon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 0:09-cr-00207-CMC-3 Copies to all parties and the district court/agency. [998446255] [09-4836]

US v. Michael Dixon

Doc. 0

Case: 09-4836 Document: 56

Date Filed: 10/15/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4836 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL JERROD DIXON, a/k/a G Thang, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Cameron McGowan Currie, District Judge. (0:09-cr-00207-CMC-3) Submitted: September 3, 2010 Decided: October 15, 2010

Before NIEMEYER, DUNCAN, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Andrew R. Mackenzie, BARRETT MACKENZIE, LLC, Greenville, South Carolina, for Appellant. William Walter Wilkins, III, United States Attorney, James Chris Leventis, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

Case: 09-4836 Document: 56

Date Filed: 10/15/2010

Page: 2

PER CURIAM: Michael Dixon appeals his conviction and life sentence following a guilty plea to a single count of conspiracy to

possess with intent to distribute and to distribute 5 kilograms or more of cocaine and 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006). His

attorney has filed a brief in this court pursuant to Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal, but questioning whether the

district court erred in enhancing Dixon's sentence when Dixon allegedly did not know he was pleading guilty to one of the predicate offenses, and whether the district court erred in

enhancing Dixon's sentence when two of his predicate offenses "may have been consolidated" in state court. Dixon was notified

of his right to file a pro se supplemental brief, but has not done so. Though counsel does not question the validity of the guilty plea or the Fed. R. Crim. P. 11 hearing, we will, in the Anders context, review the validity of the colloquy. Because

Dixon did not move in the district court to withdraw his guilty plea, any error in the Rule 11 hearing is reviewed for plain error. United States To v. Martinez, plain 277 F.3d he 517, "must 525-26 show:

(4th Cir. 2002).

establish

error,

(1) an error was made; (2) the error is plain; and (3) the error 2

Case: 09-4836 Document: 56

Date Filed: 10/15/2010

Page: 3

affects substantial rights."

United States v. Massenburg, 564

F.3d 337, 342-43 (4th Cir. 2009) (reviewing unpreserved Rule 11 error). "The decision to correct the error lies within [this

court's] discretion, and [the court] exercise[s] that discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. at 343

(internal quotation marks omitted). burden of showing plain error.

The defendant bears the

Our review of the record leads us to conclude that the district court conducted a thorough colloquy well within the mandates of Rule 11. voluntary, and The court ensured the plea was knowing, by an adequate factual basis. We

supported

accordingly affirm Dixon's conviction. This deferential court reviews Dixon's standard. sentence Gall under v. a

abuse-of-discretion

United

States, 552 U.S. 38, 51 (2007).

The first step in this review

requires the court to "ensure that the district court committed no significant procedural error, such as improperly calculating the Guidelines range." 387 (4th Cir.) United States v. Osborne, 514 F.3d 377, quotation marks, citations and The the the

(internal

alterations omitted), cert. denied, 128 S. Ct. 2525 (2008). court then considers "tak[ing] the into substantive account reasonableness the totality of of

sentence,

circumstances."

Gall, 552 U.S. at 51. 3

This court presumes on

Case: 09-4836 Document: 56

Date Filed: 10/15/2010

Page: 4

appeal that a sentence within a properly calculated Guideline range is reasonable. (4th Cir. 2007). Counsel first questions whether Dixon's South Carolina conviction for possession of contraband in a jail should count towards a 18 U.S.C. § 851 (2006) sentence enhancement. argued guilty Dixon in to is district the court and that he he never to did not voluntarily before a Dixon plead judge. United States v. Allen, 491 F.3d 178, 193

charge a

appeared the

mounting

challenge

conviction's

validity

pursuant to § 851(c).

Because the underlying conviction was

obtained in 1996 and the § 851 information was lodged in 2009, his challenge is clearly precluded by the five-year statute of limitations in § 851(e). Dixon next questions whether his two underlying

offenses should have been counted as a single offense for the purposes of § 851 because they were "consolidated." Though the

record reveals that he was sentenced for both offenses on the same day, the offenses were clearly separate. the offenses as separate, there were The state treated separate charging We We and

documents, and the charges stemmed from separate arrests. agree with counsel that this argument is without merit. conclude that Dixon's sentence was both procedurally

substantively reasonable.

4

Case: 09-4836 Document: 56

Date Filed: 10/15/2010

Page: 5

In accordance with Anders, we have reviewed the entire record and found no meritorious claims for appeal. we affirm the district court's judgment. Accordingly,

This court requires

that counsel inform his client, in writing, of his right to petition review. the Supreme Court of the United States for further

If the client requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from

representation. was served on

Counsel's motion must state that a copy thereof the client. We dispense with oral argument

because the facts and legal contentions are adequately expressed in the materials before the court and argument would not aid the decisional process. AFFIRMED

5