Dixie v. USA

Filing 1

OPINION AND ORDER GRANTING Joint Motion to Correct Sentence Pursuant to 28 U.S.C. Sec. 2255 by Sowande Dixie. The Court VACATES the sentencing imposed only as to Count 1, and imposes a sentence of 60 months imprisonment for Count 1. All other aspects of the Judgment, remain in effect and will be unchanged. Signed by Judge Theresa L Springmann on 7/10/2014. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
UNITED STATES OF AMERICA
v.
SOWANDE DIXIE

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CAUSE NO.: 1:07-CR-33-TLS

OPINION AND ORDER
Defendant Sowande Dixie was originally sentenced by this Court on April 20, 2009. The
Government and the Defendant have now filed a Joint Motion to Correct Sentence Pursuant to
28 U.S.C. § 2255 [ECF No. 97]. In the Joint Motion, the parties request that the Court vacate the
Defendant’s 70 month term of imprisonment for his drug offense and resentence him to 60
months imprisonment, the mandatory minimum that was in effect in 2009 when his sentence was
imposed.

BACKGROUND
The Defendant was convicted of possessing with intent to distribute crack cocaine (Count
1), and of carrying a firearm during and in relation to a drug trafficking crime (Count 2). The
Presentence Investigation Report, which was adopted by the Court at the time of sentencing,
reported that the Defendant’s offense involved 31 grams of crack cocaine. This amount was
supported by the arresting officer’s report that the total bag weight of the drugs was field tested
to be 31 grams. As a result of the amount of drugs and Specific Offense Characteristics, the
Defendant’s Total Offense Level under the Guidelines was 23. Based on his Criminal History
Category of IV and Total Offense Level of 23, the sentencing guideline range was 70 to 87
months. The Court sentenced the Defendant to the low end of the guideline range, 70 months.

For Count 2, the Defendant was subject to a mandatory sentence of 60 months to be served
consecutively to the term of imprisonment for Count 1.
Although the Defendant later petitioned the Court to reduce his sentence pursuant to
retroactive amendments to the Guidelines, see 18 U.S.C. § 3582(c)(2), the Court denied his
request because the PSR reported that the offense involved 31 grams of crack cocaine, and,
based on this amount, applying the amendments did not change the Defendant’s Guideline range.
There have been no further changes to the Guidelines since the Defendant’s § 3582(c)(2) request
was filed and denied.
The total net weight of the cocaine base crack, as established by an April 8, 2009,
Certificate of Analysis from the Indiana State Police Laboratory Division, was actually 24.46
grams, not 31 grams. This Certificate, however, was not obtained at the time of the original
sentencing, and the Court did not rely upon it. The parties are requesting that the Court vacate
the Defendant’s sentence on Count 1, and impose the sentence it would have imposed in 2009
had the correct drug quantity been presented to the Court, taking into account the retroactive
changes to the Guidelines.

ANALYSIS
A defendant may challenge a sentence if: 1) the sentence violates the Constitution or laws
of the United States; 2) the sentencing court lacked jurisdiction to impose the sentence; 3) the
sentence exceeds the statutory maximum; or 4) the sentence “is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). Defendants have a due process right to be sentenced on the basis of
accurate information. United States v. Tucker, 404 U.S. 443, 447 (1972). Habeas relief may be

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granted where the information before the sentencing court was inaccurate, and the court relied on
the misinformation in passing sentence. United States ex rel. Welch v. Lane, 738 F.2d 863, 865
(7th Cir. 1984).
There is no doubt that a criminal defendant has a due process right to have the
court consider only accurate information when imposing sentence, and that this
right may be violated when the court considers information which is inaccurate.
To succeed on such a claim the defendant must demonstrate that the information
before the court was inaccurate and that the court relied on it.
United States v. Coonce, 961 F.2d 1268, 1275 (7th Cir. 1992) (citing Tucker, 404 U.S. at 447 and
United States v. Musa, 946 F.2d 1297, 1306 (7th Cir. 1991)); see also Townsend v. Burke, 334
U.S. 736, 741 (1948) (reversing sentence that violated due process because it relied upon
“materially untrue” assumptions).
Here, the Government has conceded the inaccuracy of the drug quantity. Additionally,
the Court gave specific consideration to and based its sentence, in part, on the drug quantity
reported in the PSR. See Tucker, 404 U.S. at 447 (stating that a sentencing court demonstrates
actual reliance on misinformation when the court gives “explicit attention” to it, “found[s]” its
sentence “at least in part” on it, or gives “specific consideration” to the information before
imposing sentence); see also United States v. Claybrooks, 729 F.3d 699, 706 (7th Cir. 2013)
(recognizing that “[f]or those defendants convicted of drug-related offenses, a determination of
the quantity of narcotics involved in their offense forms an essential part of the sentencing
analysis”). The parties’ request, that the Court correct the Defendant’s sentence “based upon his
due process right to be sentenced on the basis of accurate information” (Joint Motion 1–2, ECF
No. 97), is supported by the record in this cause. The actual drug quantity yields a Guideline
range of 57 to 71 months (after the 2010 amendments), with the low end being adjusted to 60

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months to reflect the statutory mandatory minimum (the Fair Sentencing Act of 2011 does not
apply to the Defendant).
The Defendant did not raise the due process claim prior to the Joint Motion, and the law
is well settled that failure to raise constitutional issues on direct appeal bars consideration of the
issues under § 2255 unless cause for the procedural default and prejudice arising from it are
shown, see Menzer v. United States, 200 F.3d 1000, 1005 (7th Cir. 2000); Rosenwald v. United
States, 898 F.2d 585 (7th Cir. 1990). However, “[t]he procedural-default rule is neither a
statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to
conserve judicial resources and to respect the law’s important interest in the finality of
judgments.” Massaro v. United States, 538 U.S. 500, 505 (2003). Here, the Court sees no reason
to adhere to the doctrine. Additionally, the Government states that it is “specifically waiving the
one (1) year period of limitations solely and exclusively for the purpose of correcting the
sentence to sixty (60) months on Count 1, rather than the seventy (70) months to which the
Defendant was sentenced in 2009.” (Joint Motion 3–4.) The Government is also expressly
waiving enforcement of the “2255 waiver contained in the Plea Agreement solely to allow the
Defendant to pursue this 2 level variance.” (Id. at 4.)
In view of the parties’ Joint § 2255 Motion, there are no material facts in dispute, and the
Defendant is conclusively entitled to relief. Accordingly, the Court vacates the Defendant’s
sentence of 70 months of imprisonment on Count 1, and corrects the sentence to be 60 months
imprisonment. See 28 U.S.C. § 2255 (stating that, upon granting a § 2255 motion, the court
“shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear appropriate”). Although the Defendant is

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“specifically waiving his right to a hearing” and “any right to be present at the time of resentencing” (Joint Motion 4), the Court does not find that a hearing or resentencing are
necessary. Simply correcting the sentence to align with an accurate drug quantity is sufficient to
grant the Defendant relief in this matter.

CONCLUSION
For the reasons stated above and set forth in the parties Joint Motion, the Court now
GRANTS the Joint Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 [ECF No. 97]. The
Court VACATES the sentencing imposed only as to Count 1 [Judgment, ECF No. 62], and
imposes a sentence of 60 months imprisonment for Count 1. All other aspects of the Judgment
[ECF No. 62] remain in effect and will be unchanged.
SO ORDERED on July 10, 2014.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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