United States v. Peter Michael Dixon

66 F.3d 133, 1995 U.S. App. LEXIS 27711, 1995 WL 576944

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 3, 1995
• Docket: 95-1040
• Status: Published

Opinions

CONTIE, J., delivered the opinion of the court, in which RYAN, J., joined. NELSON, J. (pp. 136-37), delivered a separate dissenting opinion.

CONTIE, Circuit Judge.

Peter Michael Dixon (“Dixon”) appeals the district court’s imposition of a two-level enhancement for victim vulnerability pursuant to U.S.S.G. § 3A1.1. We vacate Dixon’s sentence and remand this action to the district court for resentencing for the following reasons.

I.

On October 6, 1993, a federal grand jury charged defendant-appellant Dixon with “pass[ing], utter[ing] and publishing] as true a Treasury Cheek of the United States bearing the falsely made and forged endorsement ‘Cecil Brown’” in violation of 18 U.S.C. § 510(a)(2). On October 3, 1994, Dixon pleaded guilty to the one-count indictment pursuant to a written plea agreement. On December 20, 1994, the district court sentenced Dixon to 21 months imprisonment,¹ to be followed by a two-year term of supervised release. The district court also ordered that Dixon pay restitution in the amount of $4,099.² Dixon timely appealed.

II.

Dixon’s sole issue on appeal is whether the district court erred in applying U.S.S.G. § 3A1.1 to enhance his base offense level. “We review the District Court’s application of the Sentencing Guidelines de novo, and its supporting factual findings for clear error.” United States v. Wright, 12 F.3d 70, 72 (6th Cir.1993) (citation omitted).

The Sentencing Guidelines provide: “If the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct, increase by 2 levels.” U.S.S.G. § 3A1.1. Though the record reveals that Cecil Brown was disabled and hospitalized by emphysema, a heart condition and a stroke when Dixon committed the instant offense, Dixon argues that:

[T]here was no evidence presented that there was any correlation between payee Cecil Brown’s alleged vulnerabilities as a hospitalized person and Defendant-appellant’s offense of conviction, uttering and publishing a fraudulent check to his credit union_ The offense of conviction, i.e., uttering and publishing, involves a fraud against the credit union which receives a forged check. While it may involve, in some degree, a fraud also against the payee on the check, that is a coincidence of the offense that is present in every uttering and publishing case. The fact of this coincidental fraud does not present a factual basis supporting an enhancement under the “vulnerable victim” provision of the guidelines.

....

Cecil Brown, as the payee on the treasury cheek negotiated by Defendant-Appellant to his credit union, may have been a victim in the sense that he suffered collateral consequences, i.e., temporary loss of funds to which he was entitled, but he was not the target of Defendant-Appellant’s offense of conviction, uttering and publishing a fraudulent instrument to his credit union. Defendant-Appellant’s offense was completed with the passing of a cheek to his credit union, and it did not require the use of a particular person’s forged treasury check, but only a forged treasury check. Therefore, it cannot be said that Cecil Brown was a victim, whether vulnerable or not, of the offense of conviction.

Appellant’s Brief at 20-23 (citations omitted) (emphasis in original).

In United States v. Wright, this court held that “section 3A1.1 is applicable only where the alleged victim is a victim of a defendant’s offense of conviction.” 12 F.3d at 73. See generally U.S.S.G. § 3A1.1, comment. (n.l) (“This adjustment applies to offenses where an unusually vulnerable victim is made a target of criminal activity by the defendant.”). Though other circuits have held that a nexus between the alleged harm suffered and the defendant’s offense of conviction is not required,³ the Sixth Circuit recently held that “the language of section 3A1.1 itself requires that individuals targeted by a defendant be victims of the conduct underlying the offense of conviction.” United States v. Wright, 12 F.3d at 73. Indeed, “section 3Al.l’s adjustment may be applied only when a victim is harmed by a defendant’s conduct that serves as the basis of the offense of conviction.” Id. Accordingly, Dixon’s status as a victim hinges upon the elements of the underlying offense, uttering and publishing a United States Treasury Check. See generally id. at 74 (“In light of our holding that the victim-related adjustment of section 3A1.1 applies only in eases where there is a victim of the offense of conviction, we further hold that a court cannot apply the adjustment based upon ‘relevant conduct’ that is not an element of the offense of conviction. Section 1B1.3 has no application in a section 3A1.1 adjustment.”).

Though Dixon forged Brown’s endorsement on the back of Brown’s Treasury Check and deposited the cheek into his account, Brown did not suffer a financial loss:

Cecil E. Brown had his VA check stolen from him. Mr. Brown filed a claim for this check approximately three months later in November, 1991; fortunately, he did not incur a lapse in personal care or medical services being provided to him.

Veteran’s Affairs did not suffer a $4,099.00 loss when the pension check in the name of Cecil E. Brown was fraudulently endorsed and cashed by the defendant, Peter Michael Dixon, as they charged the loss back to the School Employees Credit Union. As the School Employees Credit Union ... cashed the check that was fraudulently endorsed by Peter Dixon, the Credit Union experienced a loss of $4,099.00, none of which has been recovered at this time. Ms. Roxie Willis, President and CEO of the School Employees Credit Union, reported that her institution did not suffer any financial loss in this matter, as a claim was sent to their bond company....

The CUNA Mutual Insurance Group/CU-MIS Insurance Society, Inc., ... is the true victim in this matter as they reimbursed the School Employees Credit Union for the loss occurred from the fraudulent activities committed against them by Peter Michael Dixon....

Dixon’s Presentence Investigation Report at 7-8.

In United States v. Bondurant, 39 F.3d 665 (6th Cir.1994), this court held:

Application of Wright to this case requires the conclusion that the victim of the offense of conviction was the issuer of Bon-durant’s Discover Card, not Bondurant’s son. While the son might have been victimized by the offense, in the sense that he suffered collateral consequences, he was neither the victim nor the target of the offense of conviction.... The entity to which Bondurant misrepresented his social security number was the Discover Card issuer, not his son. Likewise, the entity that relied on Bondurant’s misrepresentation, and suffered direct financial harm as a result, was the Discover Card issuer. Bondurant’s offense was complete with the commission of these acts, and did not require the use of a particular person’s social security number, but only one not belonging to him. Consequently, it cannot be said that his son was a victim, whether vulnerable or not, of the offense of conviction. Bondurant’s sentence therefore must be vacated, and the case remanded for resentencing based on an offense level not enhanced under U.S.S.G. § 3A1.1.

Id. at 667-68.

Because Cecil Brown was not a victim of Dixon’s offense pursuant to this court’s holdings in Wright and Bondurant, we VACATE Dixon’s sentence and REMAND this action to the district court for resentencing.

1 . The district court determined that Dixon's offense level (7) and criminal history category (VI) yielded a 15 to 21 month term of imprisonment (pursuant to the Sentencing Guidelines).

2 . The district court ordered that Dixon make restitution to the credit union where the forged Treasury Check was deposited.

3 . See, e.g., United States v. Yount, 960 F.2d 955, 958 (11th Cir.1992) ("[T]he 'vulnerable victim' provision does not require a vulnerable victim who is a victim of the offense of conviction.”).