United States v. Dickerson
678 F. App'x 706
| 10th Cir. | 2017Background
- In summer 2013 Kelvin Dickerson robbed seven bank depositors in Albuquerque; arrested after the seventh robbery and pleaded guilty to eight counts (conspiracy and multiple Hobbs Act robberies).
- PSR grouped counts into seven sentencing groups, calculated a combined Guidelines offense level of 32, criminal-history category III, and recommended 151–188 months; PSR recommended $8,424.60 restitution.
- At sentencing the district court adopted the PSR except removing a two-level threat-of-death enhancement for some groups, yielding a Guidelines range of 121–151 months and imposed 121 months imprisonment and $8,424.60 restitution orally.
- The written judgment, however, mistakenly ordered restitution of $9,798.60; Dickerson appealed, challenging restitution and the procedural and substantive reasonableness of his sentence.
- The Tenth Circuit affirmed the sentence in all respects except it reversed the written judgment on restitution and remanded to correct the restitution amount to $8,424.60.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the written judgment’s restitution amount controls | Gov’t contended oral pronouncement controls but accepted correction | Dickerson argued written judgment (higher amount) controlled | Oral pronouncement controls; remand to amend written judgment to $8,424.60 |
| Whether sentencing enhancements/restoration relied on unreliable hearsay | Gov’t: PSR and police reports provided minimal indicia of reliability | Dickerson: evidence was hearsay/unreliable (police reports, unsworn victim statements) | He forfeited specific hearsay objection; even under plain-error review no clear, obvious error—the record bore minimal indicia of reliability |
| Whether factual evidence supported specific enhancements (dangerous weapon, bodily injury, physical restraint, >$10,000 loss) | Gov’t: PSR, police reports, video, and victim interviews supported each enhancement | Dickerson: evidence insufficient or contradicted (minor injuries, mitigation of check losses) | Court upheld each enhancement: taser is a dangerous weapon; visible/lasting injuries supported bodily-injury enhancements; restraint and >$10k loss calculated at time of dispossession are proper |
| Whether restitution amounts (Loan Max, Church’s Chicken, Sonic, victim J.H.) lacked evidentiary support | Gov’t: PSR, victim statements and business follow-ups sufficiently documented cash/check losses | Dickerson: PSR lacked supporting documents and precision; some amounts differ from on-scene estimates | District court did not clearly err; MVRA satisfied and government met burden by preponderance; restitution of $8,424.60 affirmed (oral amount controls) |
Key Cases Cited
- United States v. Barwig, 568 F.3d 852 (10th Cir.) (oral pronouncement controls over written judgment)
- United States v. Marquez, 337 F.3d 1203 (10th Cir.) (same principle regarding oral sentence control)
- United States v. Ullman, 788 F.3d 1260 (10th Cir.) (reinforcing oral pronouncement rule)
- Gall v. United States, 552 U.S. 38 (2007) (two-step reasonableness review: procedural then substantive; §3553(a) factors)
- United States v. Quiver, 805 F.3d 1269 (10th Cir.) (Taser is a dangerous weapon)
- United States v. Fennell, 65 F.3d 812 (10th Cir.) (insufficient hearsay reliability for sentencing enhancement)
- United States v. Ruby, 706 F.3d 1221 (10th Cir.) (hearsay may be considered at sentencing if minimally reliable)
- United States v. Ferdman, 779 F.3d 1129 (10th Cir.) (insufficient evidence for restitution where losses unverified or based on speculative lost sales)
- United States v. Brown, 200 F.3d 700 (10th Cir.) (visible injuries such as redness/bruising can support bodily-injury enhancement)
- United States v. Mejia-Canales, 467 F.3d 1280 (10th Cir.) (reversal where injuries were minor, not shown to be painful or lasting)