[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 22, 2005
No. 04-16287
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 00-00339-CR-T-23EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSSIE LIVINGSTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 22, 2005
Before BIRCH, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Gussie Livingston, a federal prisoner convicted of one count of conspiracy
to commit an offense against the United States, in violation of 18 U.S.C. § 371, and
seven counts of wire fraud, in violation of 18 U.S.C. § 1343, appeals the district
court’s revocation of her supervised release term and imposition of 6 months’
imprisonment and 30 months’ supervised release. After review, we affirm.
I. BACKGROUND
A. Livingston’s Convictions and Sentence
Following her convictions for one count of conspiracy to commit an offense
against the United States and seven counts of wire fraud, Livingston was sentenced
to 18 months’ imprisonment and 36 months’ supervised release. Livingston also
was ordered to pay a special assessment of $800 and restitution in the amount of
$152,881. After serving her term of imprisonment, Livingston began serving her
supervised release on October 29, 2003.
B. First Petition for Revocation of Supervised Release
On February 11, 2004, the United States Probation Office petitioned the
district court for revocation of Livingston’s supervised release. The petition
alleged that Livingston violated the terms of her supervised release by refusing to
make monthly payments toward restitution or set up a payment plan. The district
court held a revocation hearing on April 20, 2004. At the hearing, the district court
postponed a final determination on revocation and modified Livingston’s
supervised release terms by ordering her to provide the probation officer with
2
access to any requested financial information. Further, the district court ordered
Livingston to refrain from incurring any new credit charges or making any major
purchases without the approval of the probation officer. The district court then
continued the hearing until November 16, 2004 to permit inquiry into Livingston’s
financial position.
Following the revocation hearing, Livingston signed several release forms
allowing the probation officer to access her financial information. She also
provided documentation of her expenses and income and signed a restitution
payment agreement in which she agreed to pay $20 per month in restitution.
C. Second Petition for Revocation of Supervised Release
On November 3, 2004, the Probation Office submitted a superceding
petition for revocation. The petition repeated the allegations in the previous
petition, and further alleged that Livingston had failed to submit requested
financial documents and had failed to sign additional financial release forms.
On November 16, 2004, the district court held a final revocation hearing.
During the hearing, the probation officer testified that he sent a letter to Livingston
requesting that she fill out certain financial statements and a financial release form.
The probation officer testified that Livingston failed to fill out the statements and
sign the release form. In October 2004, the probation officer went to Livingston’s
3
residence to have her complete the paperwork. However, Livingston became
angry, called him a “cracker,” and refused to complete the paperwork.
Livingston testified that she had already signed six release forms after the
first hearing and that she had dutifully submitted her monthly financial reports.
She also testified that she had been making larger payments than the required $20
per month because people were helping her with the payments. She stated that she
would not sign any additional release forms even if they were given to her at the
hearing because her financial situation had not changed.
D. The District Court’s Decision
The district court found that Livingston was guilty of violating her
supervised release terms. In making its determination, the district court made the
following observations: (1) it had “profound doubts” that Livingston was as poor
as she claimed; (2) Livingston was “uncooperative, intransigent, and abusive”; (3)
there was reason to suspect that Livingston could afford to pay more than $20 per
month toward restitution; (4) Livingston’s testimony at trial was not credible, and
thus her statements regarding her finances were suspect; (5) Livingston had
engaged in a program of avoidance designed to prevent the discovery of her net
worth; and (6) Livingston never had accepted responsibility and had persisted in a
program of defiance, including refusing to sign the financial release forms at the
4
hearing.
The district court then noted that the Guidelines range was 3-9 months’
imprisonment. The district court sentenced Livingston to 6 months’ imprisonment
and 30 months’ supervised release.
In its written order, filed after the revocation hearing, the district court
stated:
The April, 2004, hearing was continued for six months to permit
inquiry into the defendant’s financial position. Although paying
monthly, the defendant has obstructed efforts by the Probation Officer
to supervise her and to discover her true resources, which might
contribute to retiring over $150,000 owed in restitution. The
defendant’s history (fraud and other financial gamesmanship) and her
demeanor throughout the instant case (arrogant and verbally abusive,
including saying she was “sick of” the Probation Officer, whom she
characterized as a “white cracker”) aggravate her non-compliance and
strongly suggest purposeful and intransigent obstruction. At trial and
sentencing, the defendant’s testimony was unworthy of belief and
manifestly contrary to overwhelming evidence. Regrettably, this
pattern continues today. Accordingly, the Court accepts the testimony
of United States Probation Officer Palmiotto and rejects the testimony
of the defendant, to the extent of any conflict. Of course, the
defendant offered at least one piece of highly persuasive testimony
when she testified, accenting her defiance, that she would not provide
the Probation Officer financial releases or a net worth statement, even
if asked today at the hearing.
Livingston appealed.
II. DISCUSSION
On appeal, Livingston argues that the imposition of six months’
5
imprisonment was unreasonable. Livingston further argues that the district court
failed to consider the factors set forth in 18 U.S.C. § 3553(a) and overstated the
seriousness of the violation. Finally, she argues that the district court failed to
consider that she initially had submitted the required paperwork and consistently
had been making restitution payments.
Upon finding that the defendant violated a condition of supervised release, a
district court may revoke the term of supervised release and impose a term of
imprisonment after considering certain factors set forth in § 3553(a).1 18 U.S.C. §
3583(e). The sentencing court “shall state in open court the reasons for its
imposition of the particular sentence.” 18 U.S.C. § 3553(c).
Prior to Booker, we reviewed a federal sentence imposed after revocation of
supervised release using the “plainly unreasonable” standard set forth in 18 U.S.C.
§ 3742(e)(4). United States v. Scroggins, 910 F.2d 768, 769 (11th Cir. 1990).
1
Specifically, the district court must consider the following:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant; (2) the need for the sentence imposed (A) to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and (D) to provide
the defendant with needed [treatment]; . . . (4) the kinds of sentence and the
sentencing range established for . . . (B), in the case of a violation of probation or
supervised release, the applicable guidelines or policy statements issued by the
Sentencing Commission . . . ; and (5) any pertinent policy statement issued by the
Sentencing Commission.
18 U.S.C. § 3553(a).
6
However, in Booker, the Supreme Court excised § 3742(e)(4), which contained
standards of review, from the Sentencing Reform Act and replaced it with a
reasonableness standard. Booker, 125 S. Ct. at 764-66.
Post-Booker, our sister circuits have determined that Booker’s
reasonableness standard is the same as the now-excised “plainly unreasonable”
standard in § 3742(e)(4). See United States v. Tedford, 405 F.3d 1159, 1161 (10th
Cir. 2005) (“Although the Supreme Court’s decision in United States v. Booker
altered our standard of review for most sentencing cases, the standard of review for
cases where the defendant challenges the revocation of her supervised release
remains the same.”); United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005)
(“[T]he new standard of review will not change the result in this case, because the
new standard is actually the same as the one we would have used otherwise.”);
United States v. Fleming, 397 F.3d 95, 99 (2d Cir. 2005) (applying reasonableness
standard of review in revocation of supervised release case after Booker). We
agree and review Livingston’s sentence for reasonableness.
Livingston committed a Grade C violation of supervised release by failing to
follow her supervised release terms. U.S.S.G. § 7B1.1(a)(3). At the time of her
original sentencing, she had a criminal history category of I. Thus, her guideline
imprisonment range upon a revocation of supervised release was 3-9 months’
7
imprisonment. U.S.S.G. § 7B1.4(a).
As the district court found, Livingston violated the terms of her supervised
release by failing to provide all of the forms requested by the probation officer.
Further, Livingston stated at the revocation hearing that she still would not sign the
forms. The district court’s decision was reasonable and not an abuse of discretion
in light of the factors set forth in § 3553(a). Specifically, the district court
determined that Livingston: (1) previously had committed crimes of fraud that
indicated a lack of trustworthiness; (2) had never accepted responsibility for her
crimes; (3) had been verbally abusive to her probation officer; (4) might be
continuing with her past fraud by hiding her assets to avoid paying restitution in
full; and (5) needed to cooperate with probation so that the restitution could be
paid. The district court sentenced Livingston within the recommended Guidelines
range for such a violation. In light of the testimony presented at the revocation
hearing, Livingston’s continuing refusal to sign the necessary forms, and the
district court’s decision to sentence Livingston within the Guidelines range, it
cannot be said that the sentence was unreasonable.
Upon review of the record and the parties’ briefs, we discern no reversible
error. As such, we affirm Livingston’s sentence.
AFFIRMED.
8