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Precedential or Non-Precedential: Non-Precedential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
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"USA v. Livingston" (2003). 2003 Decisions. Paper 614.
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NOT PRECEDENTIAL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.
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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.
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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
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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
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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.
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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
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