                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-19-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 01-4013




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"USA v. Mayo" (2003). 2003 Decisions. Paper 798.
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                                                                       NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT


                                          No. 01-4013




                                UNITED STATES OF AMERICA

                                                v.

                                      ANTHONY MAYO,
                                        a/k/a Billy Silks

                                                             Anthony Mayo,
                                                                       Appellant




                          On Appeal from the United States District Court
                              for the Middle District of Pennsylvania
                                D.C. Criminal No. 00-cr-00336-2
                                   (Honorable Sylvia H. Rambo)




                          Submitted Pursuant to Third Circuit LAR 34.1(a)
                                        January 14, 2003

                    Before: SCIRICA, BARRY and SMITH, Circuit Judges

                                    (Filed: February 14, 2003 )




                                   OPINION OF THE COURT


SCIRICA, Circuit Judge.
          The defendant, Anthony Mayo, appeals from the judgment of sentence. We will

affirm.

                                                       I.

          The District Court sentenced Mayo to 276 months imprisonment after he pleaded

guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

Mayo appeals from the sentence on two grounds. First, Mayo asks that his sentence be

vacated and the matter be remanded to allow him to make objections to the pre-sentence

report. Second, Mayo claims the District Court erroneously concluded that his criminal

history category did not adequately reflect his past criminal conduct under United States

Sentencing Guideline § 4A1.3.1

                                                      II.

          The pre-sentence report delineated the potential grounds for adjustment in

Mayo’s sentence, yet no objections were raised. Nor did Mayo make any objections at the

sentencing hearing. Therefore, we review for plain error. United States v. Knobloch, 131

F.3d 366, 370 (3d Cir. 1997) (providing that issues not raised before the district court are

reviewed only for plain error) (citations omitted). Reversal for plain error requires us to

find: 1) an error; 2) that is plain; 3) that affects Mayo’s substantial rights and 4) that




   1
    U.S.S.G. § 4A1.3 provides, “[i]f reliable information indicates that the criminal history
category does not adequately reflect the seriousness of the defendant’s past criminal
conduct or the likelihood that the defendant will commit other crimes, the court may
consider imposing a sentence departing from the otherwise applicable guideline range.” Id.

                                                       2
“seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

United States v. Olano, 507 U.S. 725, 732 (1993).

        The transcript of the sentencing hearing reflects that the District Court twice asked

Mayo if he had any objections to the pre-sentence report. Following the first inquiry, the

Court granted Mayo a half hour recess to confer with his attorney. After Mayo and his

attorney returned, the District Court again asked if there were any objections. Neither

Mayo nor his attorney objected. On appeal Mayo does not indicate what objections he

would like to make.

        Mayo argues the District Court failed to determine that his criminal history score

significantly under-represented his past criminal conduct. The District Court expressly

stated, however, that Mayo’s “criminal history category of six significantly under-

represents the seriousness of defendant’s criminal history.” The District Court explained:

        The defendant has a history of violent offenses and has been undeterred by
        previous terms of incarceration. There is a strong likelihood of recidivism.
        Defendant has four prior convictions that were not assigned criminal history
        points for various reasons. He had two juvenile matters for which he
        admitted guilt but did not receive criminal history points.

        U.S.S.G. § 4A1.3(a) provides that “sentences not used in computing the criminal

history” may constitute “reliable information” that the defendant’s criminal history under-

represents the seriousness of the defendant’s criminal past. Id. The juvenile offenses

excluded from the computation of Mayo’s criminal history points were “for conduct

similar to the instant offense.” United States v. Thomas, 961 F.2d 1111, 1116 (3d Cir.

1992) (citation omitted). Accordingly, they provided an appropriate basis for an upward

                                                       3
departure. Id. The Commentary provides that the likelihood of recidivism should guide a

court’s decision to make an upward departure. U.S.S.G. § 4A1.3, cmt. Each of the reasons

upon which the District Court relied was valid.

                                                  III.

        For the foregoing reasons, the judgment of sentence will be affirmed.




                                                   4
TO THE CLERK:

          Please file the foregoing opinion.




                                               /s/ Anthony J. Scirica
                                               Circuit Judge




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