US v. Dix: Dix led a South Carolina police officer on a high-speed chase after the officer activated his blue lights to pull Dix over. Dix crashed, his vehicle was searched, and a firearm recovered. He pleaded guilty to being a felon in possession of a firearm. At sentencing, the primary issue was whether Dix would be assessed a four-level Guideline enhancement for possession of the firearm in connection with another felony offense. While he had been charged with numerous state offenses originally, the probation officer identified only one as a basis for the enhancement – grand larceny for stealing the car.
At sentencing, Dix argued that he did not steal the car, but had permission from its owner to use it. While contending that the car was stolen, the Government offered an “alternate theory,” that the other felony offense was failure to stop for a blue light, which carried a potential sentence of three years. The Government argued that the presence of the gun both emboldened Dix’s flight and contributed to it because he knew he could not legally possess it. Dix countered that while the presence of the firearm might have been a motive for the flight did not facilitate it. The district court agreed with the Government, concluding that the grand larceny evidence “could kind of go either way” and relying on the blue-light offense to impose the enhancement. Dix was sentenced to 99 months in prison, one month below the bottom of the advisory Guideline range.
On appeal, the Fourth Circuit affirmed Dix’s sentence, although it did so only after concluding procedural error had taken place. Dix’s first argument was that he was not given proper notice of the blue-light offense being a basis for the four-level enhancement because it was first brought up at sentencing by the Government. The court agreed, concluding that provisions of Rule 32 required such notice and the failure to give it constituted procedural error. However, the court also concluded that the error was harmless, noting that Dix did not request additional time to respond to the Government’s “alternate theory” and had argued against the enhancement on that basis on the merits, making “every argument in the district court . . . that he now makes on appeal” in opposition to the enhancement. In addition, “while Dix should have received notice earlier, he did receive notice before sentencing.” The court also concluded that the district court did not clearly err in applying the enhancement.
Judge King concurred in part and dissented in part, arguing that the lack of notice was procedural error but that it was not harmless, noting that the Government had never argued that the error was harmless until asked by the court during oral argument. In doing so, the court “flips” the burden of proof “on its head and rules today that it is Dix who must show prejudice,” when it is the Government’s burden to show an error was harmless.
UPDATE: After the issuance of this opinion, Dix sought rehearing en banc, which was denied. However, the panel majority “sue sponte ordered a circumscribed panel hearing for the sole purpose of filing a revised opinion,” in Judge King’s words. The ultimate result is the same – it was error for Dix to be sentenced without proper notice prior to the sentencing hearing, but the error was harmless. The majority bolstered its holding as to why the error was harmless, while Judge King bolstered his argument in partial dissent as to why it was not. The revised opinion now controls over the original, withdrawn opinion.
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