                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2007

USA v. Livingston
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1648




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                                                                        NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                          No. 06-1648


                              UNITED STATES OF AMERICA

                                                v.

                                 KWADENE LIVINGSTON,
                                             Appellant


                        Appeal from the United States District Court
                                 for the District of New Jersey
                             (D.C. Criminal No. 05-cr-00098-1)
                        District Judge: Honorable William J. Martini


                         Submitted Under Third Circuit LAR 34.1(a)
                                       May 7, 2007

             Before: RENDELL, JORDAN and HARDIMAN, Circuit Judges.

                                    (Filed: May 18, 2007)


                                 OPINION OF THE COURT


RENDELL, Circuit Judge.

                      Appellant Kwadene Livingston appeals from the sentencing order of the

United States District Court for the District of New Jersey. Livingston’s counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no non-frivolous

arguments available to Livingston on appeal and requesting leave to withdraw. We will affirm
the District Court’s sentence and grant counsel’s request.

                                                I.

       On February 8, 2005, a grand jury in the District of New Jersey returned an indictment

charging Livingston, a previously convicted felon, with one count of being a felon in possession

of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (2). Pursuant to a plea agreement,

Livingston pled guilty to the charge on November 4, 2005. Although the Presentence

Investigation Report prepared by the Probation Officer indicated, in consideration of his criminal

history, that Livingston was liable for a sentencing range of 110 to 137 months under the United

States Sentencing Guidelines (“U.S.S.G.”), the statutory maximum up to which the District

Court was authorized to sentence Livingston was 120 months, making the effective Guideline

range 110 to 120 months. On February 15, 2006, the District Court sentenced Livingston to the

bottom of this range, 110 months.

       On February 17, 2006, Livingston filed a notice of appeal. Livingston’s counsel filed an

Anders brief, moving to withdraw his representation on the grounds that Livingston’s appeal

presented no non-frivolous issues. Livingston’s subsequent pro se brief challenges the District

Court’s application of a four-step sentencing enhancement for possession of a firearm in

connection with another felony offense (here, drug possession with an intent to distribute)

pursuant to U.S.S.G. § 2K2.1(b)(5). We have jurisdiction to consider Livingston’s challenge

pursuant to 28 U.S.C. § 1291.

                                                II.

       Livingston argues that the District Court erred in imposing the § 2K2.1(b)(5)

enhancement because, in Livingston’s view, there were insufficient facts upon which to base the


                                                2
enhancement. However, Livingston’s argument must fail for the simple reason that the District

Court imposed the enhancement only after Livingston and the Government agreed, in their plea

agreement, that it would apply. Livingston has not challenged the knowing and voluntary nature

of his plea agreement with the Government and, therefore, offers no reason why we should

disregard the agreement now.1

                                                III.

       Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the

district court record and “is persuaded that the appeal presents no issue of even arguable merit,

trial counsel may file a motion to withdraw, with a supporting brief, pursuant to Anders v.

California, 386 U.S. 738 (1967).” Third Circuit L.A.R. 109.2(a). “The Court’s inquiry when

counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the

rule’s requirements; and (2) whether an independent review of the record presents any non-

frivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Because counsel’s

Anders brief complied with the rule’s requirements and because our own independent review of

the record does not reveal any non-frivolous issues, we will grant counsel’s request to withdraw.

       First, we are satisfied that counsel thoroughly examined the record for appealable issues

and accurately determined that no non-frivolous issues existed. Indeed, counsel in this case

considered several more arguments than Livingston himself thought to raise. Counsel

ultimately, and correctly, determined that none had merit. See United State v. Marvin, 211 F.3d



       1
       The Government argues that we should dismiss Livingston’s appeal because he
waived his right to such an appeal in the plea agreement. We need not rule on these
grounds, and we would not dismiss in any event. See United States v. Gwinnett, No. 06-
1766, 2007 WL 1217733 (3d Cir. Apr. 26, 2007).

                                                 3
778, 780 (3d Cir. 2000). Therefore, we are more than “satisfied that counsel adequately

attempted to uncover the best arguments” for his client. Id. at 781.

       Second, this Court’s independent review of the record and caselaw does not reveal any

non-frivolous issues. As discussed, Livingston’s appeal must fail for the simple reason that he

has not challenged the knowing and voluntary nature of the plea agreement giving rise to the

very sentencing enhancement at issue.

                                               IV.

               For these reasons, we will AFFIRM the sentence imposed by the District Court

and GRANT counsel’s motion to withdraw.2




       2
        As a result, we conclude that is not necessary to appoint counsel to file a petition
for rehearing in this Court or a petition for writ of certiorari in the United States Supreme
Court on Livingston’s behalf. See Third Circuit L.A.R. 109.2(b).

                                                4
