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


4-29-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-1454




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"USA v. Livingston" (2003). 2003 Decisions. Paper 614.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/614


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 02-1454




                          UNITED STATES OF AMERICA

                                           v.

                            ANTHONY L. LIVINGSTON

                                                      Anthony Livingston,
                                                                    Appellant


                    On Appeal from the United States District Court
                            for the District of New Jersey
                           D.C. Criminal No. 01-cr-00465
                          (Honorable Jerome B. Simandle)


                               Argued February 27, 2003

           Before: SCIRICA, GREENBERG and GIBSON*, Circuit Judges

                                (Filed : April 28, 2003)

PAUL M. PERLSTEIN, ESQUIRE (ARGUED)
P.O. Box 834
Doylestown, Pennsylvania 18901

      Attorney for Appellant



   *The Honorable John R. Gibson, United States Circuit Judge for the Eighth Judicial
Circuit, sitting by designation.
GLENN J. MORAMARCO, ESQUIRE (ARGUED)
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street, 4th Floor
P.O. Box 2098
Camden, New Jersey 08101

GEORGE S. LEONE, ESQUIRE
Office of United States Attorney
970 Broad Street, Room 700
Newark, New Jersey 07102

         Attorneys for Appellee



                                  OPINION OF THE COURT


SCIRICA, Circuit Judge.

                                              I.

         Anthony Livingston appeals from the District Court’s grant of a two level upward

departure under U.S.S.G. § 4A1.3, which was based on Livingston’s extensive criminal

history and likelihood of recidivism.1

                                             II.

         Livingston admitted to robbing eight Southern New Jersey banks between

December 14, 2000 and January 23, 2001 with the same modus operandi: using a hand-

written demand note that stated, in substance, “this is a robbery, I have a gun, I will shoot




   1
       We have jurisdiction under 28 U.S.C. § 1291.

                                              2
you, put all the money in the bag, fast.” On January 23, 2001, Livingston was arrested

and found in possession of one of these notes. He pleaded guilty to an eight count

information charging him with eight bank robberies. Prior to sentencing, a presentence

report determined Livingston had 31 prior adult criminal convictions, resulting in 26

criminal history points which placed him in Criminal History Category VI, the top

criminal history category. At the sentencing hearing the government moved for an

upward departure based on Livingston’s extensive criminal history. The District Court

granted a two level upward departure, raising Livingston’s total offense level from level

29 to level 31.2 Livingston was sentenced to a 220 month term of imprisonment, which

was within his new sentencing guideline range of 188 to 235 months. Livingston now

appeals, challenging the two level upward departure.

                                            III.

       The decision to grant an upward departure is subject to deferential review for

abuse of discretion. Koon v. United States, 518 U.S. 81, 98-100 (1996). Livingston

contends that, in deciding to grant a two level upward departure, the District Court abused

its discretion by failing to properly follow the “ratcheting” procedure set forth in United

States v. Hickman, 991 F.2d 1110 (3d Cir. 1993), and United States v. Harris, 44 F.3d

1206 (3d Cir. 1995).


   2
    The District Court noted that Criminal History Category VI requires 13 criminal
history points. Livingston had 26 criminal history points, and would have had 43 criminal
history points if all his prior convictions were counted.

                                              3
       We will affirm.

                                             IV.

       Under U.S.S.G. § 4A1.3, “If 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.”

U.S.S.G. § 4A1.3. In explaining the means of calculating the extent of a departure, §

4A1.3 states:

       In considering a departure under this provision, the Commission intends
       that the court use, as a reference, the guideline range for a defendant with a
       higher or lower criminal history category, as applicable. For example, if the
       court concludes that the defendant’s criminal history category of III
       significantly under-represents the seriousness of the defendant’s criminal
       history, and that the seriousness of the defendant’s criminal history most
       closely resembles that of most defendants with Criminal History Category
       IV, the court should look to the guideline range specified for a defendant
       with Criminal History Category IV to guide its departure.

Id.

       In Hickman we said that, in deciding to grant an upward departure, a sentencing

court must proceed sequentially through the next higher criminal history categories until

the court arrives at a category that adequately reflects the seriousness of a defendant’s

past criminal conduct. Hickman, 991 F.2d at 1114 (“. . . [T]he court is obliged to

determine which category (of those higher than the category originally calculated for the

defendant) best represents the defendant’s prior criminal history. The court then uses the



                                              4
corresponding sentencing range to ‘guide its departure.’ M oreover, the court is obliged to

proceed sequentially through these categories. It may not move to the next higher

category until it has found that a prior category still fails to adequately reflect the

seriousness of the defendant’s past criminal conduct.”). We explained in Harris that

Hickman “. . . does not ‘require the district court to go through a ritualistic exercise in

which it mechanically discusses each criminal history category it rejects en route to the

category that it selects.’ Hickman and the objective of the § 4A1.3 ratcheting process do

require, however, that the sentencing court’s reasons for rejecting each lesser category be

clear from the record as a whole.” 44 F.3d at 1212.

                                               V.

       In this case, the District Court properly proceeded through the criminal categories

in assessing the appropriate sentencing level for Livingston. In imposing the two level

upward departure, the District Court sequentially considered and rejected a one level

upward departure before exercising its discretion to impose a two level upward departure.

The District Court said:

       Now, I’m instructed by the Guideline commentary to depart upward no
       greater than is necessary to achieve the goals of the sentencing Guidelines
       and especially the goals of punishment and deterring future misconduct. If
       I were to depart upward one level, then the new range would be 168 to 210
       months, and I find that 210 months would not be sufficient in these
       circumstances. We’re dealing here with eight bank robberies in which
       tellers are put in fear of their lives, and we’re dealing with a history, not
       counting the bank robberies, of 43 other criminal history points, if all of
       them are counted, and we’re also dealing with a strong threat that was made
       from prison to someone he believed to be a witness in this case. I am going

                                               5
       to depart one more level to Level 31, Criminal History Category VI, and
       this will be a range of 188 to 235 months. And I find that . . . to sentence in
       that range, especially toward the upper end of it, would be the appropriate
       sentence for Mr. Livingston.

Thus, the District Court considered and rejected a one level upward departure and,

therefore, did not abuse its discretion in imposing the two level upward departure.

       Furthermore, the record as a whole makes clear the District Court’s reasons for

rejecting each lesser category of criminal history. Livingston had 26 criminal history

points, which is double the amount necessary to qualify for Criminal History Category VI.

Moreover, but for the application of U.S.S.G. § 4A1.1(c), which permits a maximum of

four criminal history points for criminal convictions involving a sentence of 60 days or

less, Livingston would have had a total of 43 criminal history points. His prior adult

criminal convictions include drug possession with intent to distribute, burglary, theft,

receiving stolen property, and escape. The District Court judge noted that Livingston’s

criminal history was one of the most extensive of any he had seen in his 18 years on the

bench and that Livingston was on probation and out of jail only two months when he

committed the eight bank robberies. The robberies took place over a short period of time,

which the District Court found indicative of Livingston’s likelihood of recidivism. While

in prison, Livingston wrote a threatening letter to a potential witness in the case and made

repeated threats to her because he believed she was cooperating with the government.

Based on this evidence from the record as a whole, the District Court properly exercised

its discretion when it rejected the lesser category of criminal history.

                                              6
                                           VI.

      For the reasons outlined, we find no abuse of discretion and will affirm the two

level upward departure.




TO THE CLERK:

             Please file the foregoing opinion.




                                           /s/ Anthony J. Scirica
                                           Circuit Judge




                                            7
