We know that it’s cliché, but the saying that “two wrongs don’t make a right” rings true in today’s upward variance case from the Sixth Circuit Court of Appeals.

Herbert Dixon was miffed after a federal district judge sentenced him to prison for fraudulent use of an unauthorized credit card, so he sent the judge six unsigned, letters demanding money and threatening the judge’s life. One of the letters contained faux-Anthrax, which was later determined to be artificial sweetener.

Had Dixon’s diabolical plan “worked,” we wouldn’t be writing about his appeal right now, so you already know it was a failure.

Nixon appealed the sentence to the Sixth Circuit Court of Appeals, which ruled that the district court’s sentence was reasonable.

Nixon argued that the district court employed an impermissible basis for the upward variance because his Guidelines range already included an enhancement for targeting a government officer. The Sixth Circuit, however, held that a court is not prevented from giving additional weight to a particular element of a crime, as long as it explains why the circumstance warrants additional weight.

Here, the district court explained that Nixon’s 36-month credit card fraud sentence was not enough to deter him from crime, so a sentence of more than 36 months was necessary to discourage him from future criminal conduct.

Do you agree with the Sixth Circuit that the upward variance was warranted to discourage criminal conduct, or do you think the district court issued a harsher sentence because Herbert Dixon threatened one of its jurists?

Related Resources:

  • United States v. Nixon (Sixth Circuit Court of Appeals)
  • No Sentencing Guidelines Departure for Military Service (FindLaw’s Sixth Circuit blog)
  • Federal Sentencing Guidelines Punish Use of a Minor (FindLaw’s Fifth Circuit blog)

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