     Case: 10-10051 Document: 00511328553 Page: 1 Date Filed: 12/21/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 21, 2010
                                     No. 10-10051
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUSTIN LIVINGSTON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:07-CR-316-1


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Justin Livingston pleaded guilty to one count of possessing counterfeit
obligations in violation of 18 U.S.C. § 472 and one count of conspiracy to
manufacture counterfeit obligations of the United States in violation of 18 U.S.C.
§§ 371 and 471. On direct appeal, he argued that the amount of loss for which
he was held accountable, $232,300, was incorrect. This court determined that
before the district court could properly calculate the amount of loss attributable
to Livingston, it had to determine whether Livingston engaged in an

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-10051 Document: 00511328553 Page: 2 Date Filed: 12/21/2010

                                 No. 10-10051

undertaking of criminal activity with individuals other than his co-defendants
and, if so, what was the scope of the criminal activity. See United States v.
Livingston, 344 Fed. App’x 86 (5th Cir. 2009).
      On remand, the district court found that Livingston engaged in an
undertaking of criminal activity in the Dallas- Fort Worth area with individuals
other than his co-defendants.    The district court then determined that the
amount of loss attributable to Livingston was $163,000.
      Before Livingston was resentenced, he objected, as he did at his initial
sentencing, to the applicability of § 3B1.1(a)’s organizer and leader
enhancement, which increased his base offense level four levels. The district
court again overruled Livingston’s objection.
      On appeal, Livingston does not challenge the district court’s finding that
$163,000 is an accurate accounting of the amount of loss attributable to him. He
does, however, challenge the imposition of the four-level organizer and leader
enhancement. In response, the Government contends that Livingston may not
raise this enhancement issue on appeal.
      The Government is correct. Although Livingston objected at his initial
sentencing to the organizer and leader enhancement, he did not challenge the
enhancement in his initial appeal.       Accordingly, under the mandate rule,
Livingston waived litigation or relitigation of this issue. See United States v.
Lee, 358 F.3d 315, 321 (5th Cir. 2004). Additionally, the application of this
enhancement was not within the scope of this court’s mandate. See Livingston,
344 Fed. App’x at 87-90; United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002).   Moreover, Livingston has not shown that his challenge to the
enhancement falls within any of the exceptions to the mandate rule. Matthews,
312 F.3d at 657; Lee, 358 F.3d at 320.
      Accordingly, Livingston’s sentence is AFFIRMED.




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