2003 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation

"USA v. Livingston" (2003). 2003 Decisions. Paper 614.

http://digitalcommons.law.villanova.edu/thirdcircuit_2003/614
 NOT PRECEDENTIAL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.
 

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

2

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

2The 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

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). 
4

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
5

corresponding sentencing range to ‘guide its departure.’ Moreover, 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
6

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.
7

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