USA v. Deangelo Dixon
Filing
Filed opinion of the court by Judge Easterbrook. The judgment is modified to rely on 2113(a) rather than 2113(d) and as so modified is AFFIRMED. Richard A. Posner, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Diane S. Sykes, Circuit Judge. [6672517-1] [6672517] [14-3225]
Case: 14-3225
Document: 42
Filed: 06/23/2015
Pages: 6
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-‐‑3225
UNITED STATES OF AMERICA,
Plaintiff-‐‑Appellee,
v.
DEANGELO D. DIXON,
Defendant-‐‑Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 13-‐‑cr-‐‑40023-‐‑001 — Sara Darrow, Judge.
____________________
ARGUED MAY 29, 2015 — DECIDED JUNE 23, 2015
____________________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Deangelo Dixon was con-‐‑
victed of two armed bank robberies, 18 U.S.C. §2113(d), and
sentenced to life in prison. A life sentence is mandatory un-‐‑
der 18 U.S.C. §3559(c)(1)(A) because Dixon’s criminal record
includes multiple prior convictions for robbery, which
§3559(c)(2)(F)(ii) classifies as “serious violent felonies” be-‐‑
cause each of his prior convictions was for a crime that had
Case: 14-3225
2
Document: 42
Filed: 06/23/2015
Pages: 6
No. 14-‐‑3225
the threat of violence as an element and a maximum term of
at least 10 years’ imprisonment.
Dixon contends that the prosecutor violated the rule of
Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing be-‐‑
fore trial that one witness had seen his photograph, present-‐‑
ed in a way that his lawyer deems suggestive. This came out
at trial, and Dixon’s lawyer did not recall the witness or pre-‐‑
sent any other evidence based on the photograph. Still, Dix-‐‑
on now contends, the disclosure requirement of Brady has
been violated because the disclosure occurred during rather
than before trial. This contention is a nonstarter, because
Brady is a disclosure requirement rather than a discovery re-‐‑
quirement. See, e.g., United States v. Ruiz, 536 U.S. 622 (2002);
Evans v. Circuit Court, 569 F.3d 665 (7th Cir. 2009). Because
this potentially exculpatory fact was disclosed in time to be
used at trial, Brady has been satisfied. (Dixon does not con-‐‑
tend that the United States failed to furnish any discovery
material required by an order under Fed. R. Crim. P. 16.)
Sentencing is the main event on appeal. Dixon contends
that his sentence violates the Constitution because his prior
convictions were not introduced into evidence at trial and
considered by the jury. That argument runs smack into Al-‐‑
mendarez-‐‑Torres v. United States, 523 U.S. 224 (1998), which
we must apply unless the Justices themselves change course.
See United States v. Shields, No. 13-‐‑3726 (7th Cir. June 15,
2015), slip op. 8–11. Dixon has preserved this argument for
further review.
A more promising argument is that the conviction should
have been under §2113(a) (bank robbery by intimidation)
rather than §2113(d) (violation of §2113(a) by using a dan-‐‑
gerous weapon or device). In one robbery Dixon waved at
Case: 14-3225
No. 14-‐‑3225
Document: 42
Filed: 06/23/2015
Pages: 6
3
tellers a bag containing a stiff object and threatened them,
saying “Five seconds or I’m gonna shoot”. In the other Dix-‐‑
on brandished an object with a long barrel and directed a
teller to “give him the money or he would shoot”. The object
in both robberies was not a gun but a butane lighter with a
long barrel. Here’s a picture of a lighter similar to the ones
Dixon used (which the parties inexplicably omitted from
their briefs and the appellate record):
Two lighters were seized from Dixon; one looked just like
this, and the other was only a little different. Dixon insists
that a lighter cannot be a “dangerous weapon or device,” no
matter what assumption the tellers made about what was in
the bag or attached to the barrel.
A long-‐‑neck lighter may not be a “weapon,” but it could
be thought a “dangerous … device”. This sort of lighter is
Case: 14-3225
4
Document: 42
Filed: 06/23/2015
Pages: 6
No. 14-‐‑3225
designed to reach into fireplaces or charcoal grills to start
fires. It equally could burn a teller’s face or hands. (Dixon
pressed the barrel against one teller’s neck when making a
threat.) Yet the United States did not argue to the jury, or to
us, that a lighter is a dangerous “device.” Instead it main-‐‑
tains that it should be treated as a dangerous “weapon,” be-‐‑
cause the tellers might have thought it to be one, and the
bank’s guards might have opened fire.
The statutory question, however, is whether the bank
robber used a “dangerous weapon or device” rather than
whether a guard or teller mistook a harmless device for a
weapon. That would be clear enough if Dixon had placed his
hand in his pocket with his finger extended to simulate the
barrel of a pistol, or if he had used six inches of wooden
dowel sawed from the end of a broomstick to simulate a
hidden gun barrel. If the lighter risked gunfire, so might a
finger in a pocket or a dowel in a pocket or a water pistol in
a pocket or even a kielbasa in a pocket.
McLaughlin v. United States, 476 U.S. 16 (1986), gives three
reasons why an unloaded handgun is a “dangerous weap-‐‑
on” under §2113(d): first, every firearm is potentially dan-‐‑
gerous; second, it instills fear in those at which it is pointed;
third, it can cause injury when used as a bludgeon. None of
these things is true about a kielbasa. A hidden stiff object,
plus a threat, may lead to fear, but fear differs from a “dan-‐‑
gerous weapon or device”. One decision stated that a toy
looking to observers like a real gun might be a “dangerous
weapon” because of its fear-‐‑inducing potential, see United
States v. Hargrove, 201 F.3d 966, 968 n.2 (7th Cir. 2000), but
we have never held this. We are skeptical; the statute re-‐‑
quires a dangerous weapon or device rather than something
Case: 14-3225
No. 14-‐‑3225
Document: 42
Filed: 06/23/2015
Pages: 6
5
a teller believes incorrectly to be dangerous (what if a teller
was terrified of rabbits?); but we need not decide because
Dixon did not wield a firearm look-‐‑alike.
Because §2113(a) is a lesser included offense of §2113(d),
we modify the judgment to change the statutory citation,
which may conceivably affect Dixon’s conditions of con-‐‑
finement or the terms of his release should the President
commute his life sentence. But the modification does not re-‐‑
duce that sentence, because §3559(c)(1)(A) requires a life sen-‐‑
tence for someone with Dixon’s record who is convicted of
another “serious violent felony”. Section 3559(c)(2)(F)(i) then
defines “serious violent felony” to include “robbery (as de-‐‑
scribed in section 2111, 2113, or 2118)”. Not §2113(d), in par-‐‑
ticular, or §2113(e) (bank robbery that includes kidnapping
or ends in death), but any part of §2113. Bank robbery by
verbal intimidation (§2113(a)) leads to a life term in recidi-‐‑
vist sentencing under §3559(c) just as much as bank robbery
by intimidation using a weapon.
We asked the parties to file supplemental briefs after ar-‐‑
gument to address the question whether Dixon might be en-‐‑
titled to the affirmative defense under §3559(c)(3)(A), which
provides that a robbery does not count as a “serious violent
felony” if the defendant establishes by clear and convincing
evidence that “no firearm or other dangerous weapon was
used in the offense and no threat of use of a firearm or other
dangerous weapon was involved in the offense” and that no
injury ensued. Dixon did not attempt to meet this standard
in the district court, and understandably so. Our conclusion
about the butane lighter means that no firearm was used in
his bank robberies, and the prosecutor does not contend that
anyone was injured, but Dixon threatened to use a firearm.
Case: 14-3225
6
Document: 42
Filed: 06/23/2015
Pages: 6
No. 14-‐‑3225
We held in United States v. Washington, 109 F.3d 335, 337 (7th
Cir. 1997), that “I have a gun” on a demand note prevents
use of the affirmative defense in §3559(c)(3)(A)(i). Dixon’s
statements were more graphic.
Dixon’s supplemental brief calls the tellers’ testimony
“highly suspect” or “not credible” because they did not
agree among themselves on exactly what he said, and the
threatened tellers could not positively identify him (the rob-‐‑
ber was wearing a mask). Dixon says that he was misidenti-‐‑
fied as the robber. But the jury rejected that defense, and at-‐‑
tempts to dispute the tellers’ stories do not meet the statuto-‐‑
ry standard, which requires “clear and convincing” evidence
that no threats were made. There was only one robber and if,
as the jury found, Dixon was that robber, then he was also
the person who uttered the threats.
The judgment is modified to rely on §2113(a) rather
than §2113(d) and as so modified is affirmed.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?