Dixon v. United States Of America

Filing 20

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY Dixon's 11 MOTION for Bond, 1 Motion to Vacate/Set Aside/Correct Sentence (2255), 15 MOTION for Writ of Mandamus, 12 MOTION to Compel, and DIRECT the Clerk to CLO SE this case, and DENY Dixon a Certificate of Appealability and in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the da te on which this Report and Recommendation is entered. (Objections to R&R due by 2/9/2018). The Court GRANTS Dixon's 16 MOTION to Amend/Correct 1 Motion to Vacate/Set Aside/Correct Sentence (2255), to the extent that the claims and arguments raised in all of Dixon's pleadings when issuing this Report. ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/26/2018. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

ANDREW DIXON,
Movant,

CIVIL ACTION NO.: 5:15-cv-51

v.
UNITED STATES OF AMERICA,

(Case No. 5:12-cr-18)

Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Andrew Dixon (“Dixon”), who is currently incarcerated at the Federal Correctional
Institute in Jesup, Georgia, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant
to 28 U.S.C. § 2255. (Doc. 111.) 1 For the reasons which follow, I RECOMMEND this Court
DENY Dixon’s Motion to Vacate, Set Aside, or Correct his Sentence, DIRECT the Clerk of
Court to CLOSE this case, and DENY Dixon a Certificate of Appealability and in forma
pauperis status on appeal. Given that Dixon’s Section 2255 Motion is unavailing, the Court
should DENY Dixon’s Motion for Bond, (doc. 128), Motion to Compel Judgment, (doc. 129),
and Motion for Writ of Mandamus, (doc. 133). 2

1

The pertinent record documents in this case are filed on the docket of Dixon’s criminal case, United
States v. Dixon et al., 5:12-cr-18 (S.D. Ga. Dec. 6, 2012), and many are not included in Dixon’s Civil
docket. Thus, for ease of reference and consistency, the Court cites to Dixon’s criminal docket in this
Order.
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The Court GRANTS Dixon’s Motion to Amend, (doc. 134), to the extent that I have considered the
claims and arguments raised in all of Dixon’s pleadings when issuing this Report. I agree with
Respondent that the arguments raised in Dixon’s supplemental pleadings are essentially a reiteration of
the unavailing arguments that he raises in his initial Motion. However, in an abundance of caution, the
Court has assessed those pleadings.

BACKGROUND
On December 6, 2012, the grand jury in this District charged Dixon with participating in
a conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 (Count One);
possessing cocaine base with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count
Two); possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count
Three); and possessing a firearm in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c) (Count Four). (Doc. 1.) On July 8, 2013, Dixon pleaded guilty to Counts Two
and Three, possession of cocaine base and possessing a firearm as a convicted felon,
respectively. (Doc. 54.) The Government agreed to dismiss the other two counts in exchange
for Dixon’s plea to these counts. (Doc. 77.)
On January 6, 2014, Dixon had a supplemental change of plea hearing. (Doc. 71.)
According to Dixon’s Sentencing Brief, this supplemental hearing was necessitated by the fact
that Dixon was not advised at his first plea hearing of the potential that he would be sentenced as
an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”).
(Doc. 73, pp. 2–3.) Dixon’s designation as an armed career criminal under the ACCA was due
to his prior convictions of: (1) possession of marijuana with intent to distribute; (2) felony
obstruction; and (3) sale of cocaine. (Pre-Sentence Investigation Report (“PSI”), ¶¶ 41, 42, 43.)
Having been advised of the penalties he would face under the ACCA, Dixon then entered
a guilty plea at the supplemental hearing. (Doc. 71.) In the sentencing memorandum, Dixon
requested that the Court sentence him to the statutory minimum under the ACCA, 180 months.
(Doc. 73.) At the sentencing hearing, the Honorable William T. Moore, Jr. sentenced Dixon to
188 months’ imprisonment, above the statutory minimum, but at the low end of Dixon’s advisory
Guideline range.

(Doc. 78.)

Judge Moore specifically sentenced Dixon to 188 months

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imprisonment as to both Counts 2 and 3 and ordered that those sentences run concurrently. (Id.
at p. 2.)
Dixon filed a direct appeal to the United States Court of Appeals for the Eleventh Circuit
where, for the first time, he challenged his designation as an armed career criminal under the
ACCA. (Doc. 79.) The Eleventh Circuit rejected Dixon’s arguments and affirmed his sentence.
(Doc. 105.) Specifically, that court found no plain error in the determination that Dixon’s 1998
conviction for obstructing a law enforcement officer qualified as a “violent felony” under the
ACCA. (Id. at p. 4.) The Eleventh Circuit also overruled Dixon’s argument that his 1998
conviction for possessing marijuana with the intent to distribute did not qualify as a “serious
drug offense.” (Id. at p. 5.)
DISCUSSION
In the instant Section 2255 Motion, Dixon again attacks his classification as an armed
career criminal. (Docs. 111, 134.) Specifically, he contends that his conviction for felony
obstruction of a law enforcement officer no longer qualifies as a “violent felony” under the
ACCA following the United States Supreme Court’s decision in Johnson v. United States, ___
U.S. ___, 135 S. Ct. 2551 (June 26, 2015). (Id. at p. 16–17.) 3 In response, the Government
argues that the decision in Johnson has no bearing on Dixon’s status, and that his prior
convictions, including his conviction for felony obstruction of a law enforcement officer, qualify
as predicate felonies under the ACCA. (Doc. 118.)
I.

Whether Dixon is Entitled to Relief Pursuant to Johnson
Federal law prohibits certain persons, including convicted felons, from shipping,

possessing, or receiving firearms. 18 U.S.C. § 922(g)(1). Ordinarily, an individual that violates
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Though Dixon discusses the fact that the Court found his prior conviction for possessing marijuana with the intent
to distribute to be a “serious drug offense” under the ACCA, he does not appear to challenge that finding in this
Motion. To the extent he does raise that challenge, the Court should reject it for the same reasons cited by the
Eleventh Circuit on Dixon’s direct appeal.

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this prohibition faces a statutory maximum sentence of ten years’ imprisonment. 18 U.S.C. §
924(a)(2). However, under statutory provisions that are commonly referred to as the “Armed
Career Criminal Act” or “ACCA”, any person who violates Section 922(g) and has on three or
more occasions been convicted for a “serious drug offense” or “violent felony” will receive a
mandatory minimum sentence of fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1). “Serious
drug offense” means “an offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substance . . . for which a
maximum term of imprisonment of ten years or more is prescribed by law[.]” 18 U.S.C.
§ 924(e)(2)(A)(ii). As the Supreme Court explained in Johnson, the ACCA:
defines ‘violent felony’ as follows: ‘any crime punishable by imprisonment for a
term exceeding one year . . . that—‘(i) has as an element the use, attempted use,
or threatened use of physical force against the person of another; or (ii) is
burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.’
§ 924(e)(2)(B) (emphasis added). The closing words of this definition, italicized
above, have come to be known as the Act’s residual clause.
___ U.S. at ___, 135 S. Ct. at 2555–56. In Johnson, the Court held that “imposing an increased
sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s
guarantee of due process[.]” ___ U.S. at ___, 135 S. Ct. at 2563. However, the Court also
emphasized that its “decision does not call into question application of the Act to the four
enumerated offenses, or the remainder of the Act’s definition of a violent felony.” Id.
In this case, Dixon argues that, because the Court considered his prior conviction for
obstruction of a law enforcement official to be a violent felony under the ACCA’s now-defunct
residual clause, his ACCA sentence is invalid, and he should be resentenced. (Docs. 111, 134.)
The Government responds that Johnson has no effect on Dixon’s ACCA classification because
his obstruction conviction is a violent felony under the “elements clause” of the statute. (Doc.
118, pp. 4–7.) Subsection (i), or the “elements clause,” of the ACCA provides a definition of
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“violent felony” separate and apart from the Act’s residual clause. The elements clause defines a
violent felony as a felony that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).
Given that this clause of the ACCA focuses on the statutory elements of the prior
conviction, the Court must turn to the language of the state statute under which Dixon was
convicted. The Georgia statute on felony obstruction at the time of Dixon’s conviction provided:
Whoever knowingly and willfully resists, obstructs, or opposes any law
enforcement officer, prison guard, jailer, correctional officer, community
supervision officer, county or Department of Juvenile Justice juvenile probation
officer, probation officer serving pursuant to Article 6 of Chapter 8 of Title 42, or
conservation ranger in the lawful discharge of his or her official duties by
offering or doing violence to the person of such officer or legally authorized
person shall be guilty of a felony . . . .
O.C.G.A. § 16-10-24(b) (emphasis supplied). Given the above emphasized element, the plain
language of this statute appears to meet Section 924(e)(2)(B)(i)’s requirement that the statute of
conviction include the use, attempted use, or threatened use of physical force.
Indeed, the Eleventh Circuit has squarely found that a conviction under this statute
satisfies the elements clause of the ACCA. United States v. Brown, 805 F.3d 1325, 1327 (11th
Cir. 2015) (“The district court correctly determined that felony obstruction under Georgia law is
categorically a violent felony for purposes of the ACCA’s elements clause.”); see also United
States v. Cook, 686 F. App’x 662, 663–64 (11th Cir. 2017) (reversing non-ACCA sentence of
defendant because defendant’s felony obstruction conviction qualifies as a violent felony under
elements clause under binding precedent of Brown).

Relying upon prior Eleventh Circuit

precedent interpreting the ACCA’s elements clause as well as a Georgia precedent interpreting
the state’s obstruction statute, the Eleventh Circuit held that “the Georgia crime of felony
obstruction of justice categorically meets the ‘use, attempted use, or threatened use of physical
force’ requirement of the elements clause of the ACCA.” Brown, 805 F.3d at 1327.
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Given the binding precedent of Brown and the plain language of Georgia’s obstruction
statute, Dixon’s prior conviction for felony obstruction qualifies as a violent felony under the
ACCA’s elements clause. Thus, even with the residual clause now having been excised from the
ACCA by Johnson, the Court properly sentenced Dixon as an armed career criminal.
Consequently, Dixon is not entitled to his requested relief, and I RECOMMEND the Court
DENY his Motion to Vacate, Set Aside, or Correct his Sentence. 4
II.

Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Dixon leave to appeal in forma pauperis and a Certificate of

Appealability (“COA”). Though Dixon has, of course, not yet filed a notice of appeal, it is
proper to address these issues in the Court’s order of dismissal. Pursuant to Rule 11 of the Rules
Governing Section 2255 Cases, “the district court must issue or deny a certificate of
appealability when it issues a final order adverse to the applicant.” (Emphasis supplied); see also
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Even if Dixon’s arguments were meritorious, it may be that the concurrent sentence doctrine provides
an alternative basis for dismissing his Motion. “The concurrent sentence doctrine provides that, if a
defendant is given concurrent sentences on several counts and the conviction on one count is found to be
valid, an appellate court need not consider the validity of the convictions on the other counts.” United
States v. Fuentes–Jimenez, 750 F.2d 1495, 1497 (11th Cir.1985) (citations omitted). Here, Judge Moore
sentenced Dixon to 188 months as to both Counts 2 and 3, and ordered that those sentences run
concurrently. (Doc. 78, p. 2.) While Dixon attacks his sentence for possessing a firearm as a convicted
felon (Count 3), he does not challenge his equal and concurrent sentence for possessing cocaine base with
intent to distribute (Count 2). However, the parties have not addressed this issue, and it is not clear
whether the “concurrent sentence doctrine” or the “sentencing package doctrine” should control this
question. Compare United States v. Fowler, 749 F.3d 1010, 1015 (11th Cir. 2014) (“sentencing package
doctrine” is a “common judicial practice grounded in a basic notion” that “sentencing on multiple counts
is an inherently interrelated, interconnected, and holistic process which requires a court to craft an overall
sentence—the ‘sentence package’—that reflects the guidelines and the relevant § 3553(a) factors”);
United States v. Rozier, 485 Fed. App’x 352, 356 (11th Cir. 2012) (“a district court has jurisdiction to
resentence a defendant on unchallenged counts of conviction, following a successful collateral attack,
when the unchallenged and challenged counts are ‘interdependent’ for sentencing purposes under the
Guidelines”), with Fuentes-Jimenez, 750 F.2d at 1497; In re Williams, 826 F.3d 1351, 1357 (11th Cir.
2016) (applying the concurrent sentence doctrine to deny an inmate’s application to file a second or
successive § 2255 motion to raise a Johnson claim); Willits v. United States, 182 F. Supp. 3d 1278, 1280–
83 (M.D. Fla. 2016) (analyzing whether under § 2255 where the inmate’s sentence erroneously was
enhanced under the ACCA “the Court should resentence [the inmate] on both counts of conviction under
the sentencing package doctrine or decline to resentence [him] under the concurrent sentence doctrine”).
Given that Dixon’s claims are due to be denied on the merits, the Court need not delve into this issue in
this case.
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Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in forma
pauperis is not taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous, and thus
not brought in good faith, if it is “without arguable merit either in law or fact.” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085,
403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas proceeding unless a certificate of appealability is issued.

A certificate of

appealability may issue only if the applicant makes a substantial showing of a denial of a
constitutional right. The decision to issue a certificate of appealability requires “an overview of
the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). In order to obtain a certificate of appealability, a petitioner must show
“that jurists of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. “Where a plain procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”
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Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196,
1199 (11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
Based on the above analysis of Dixon’s pleading and the Government’s Response and
applying the Certificate of Appealability standards set forth above, there are no discernable
issues worthy of a certificate of appeal; therefore, the Court should DENY the issuance of a
Certificate of Appealability.

If the Court adopts this recommendation and denies Dixon a

Certificate of Appealability, Dixon is advised that he “may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure 22.” Rule 11(a),
Rules Governing Section 2255 Cases in the United States District Courts. Furthermore, as there
are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus,
the Court should likewise DENY Dixon in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND this Court DENY Dixon’s Motion to Vacate,
Set Aside, or Correct his Sentence, (doc. 111), DIRECT the Clerk of Court to CLOSE this case,
and DENY Dixon a Certificate of Appealability and in forma pauperis status on appeal.
Accordingly, the Court should also DENY Dixon’s Motion for Bond, (doc. 128), Motion to
Compel Judgment, (doc. 129), and Motion for Writ of Mandamus, (doc. 133).
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
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served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Dixon and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 26th day of January,
2018.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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