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Sixth Circuit Upholds Upward Variance for Threat Against Judge

By Robyn Hagan Cain on December 20, 2011 | Last updated on March 21, 2019

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 ultimately pleaded guilty to committing a hoax involving a biological weapon, a crime with a suggested 30- to 37-month prison term under the Sentencing Guidelines. The district court, however, decided that the Guidelines weren't good enough for Dixon, and sentenced him to 60 months - the statutory maximum.

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?

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