United States v. Livingston ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-18-2007
USA v. Livingston
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1648
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Livingston" (2007). 2007 Decisions. Paper 1089.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1089
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 2007 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NOT PRECEDENTIAL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. 06-1648
UNITED STATES OF AMERICA
v.
KWADENE LIVINGSTON,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 05-cr-00098-1)
District Judge: Honorable William J. Martini
Submitted Under Third Circuit LAR 34.1(a)
May 7, 2007
Before: RENDELL, JORDAN and HARDIMAN, Circuit Judges.
(Filed: May 18, 2007)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Appellant Kwadene Livingston appeals from the sentencing order of the
United States District Court for the District of New Jersey. Livingston’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no non-frivolous
arguments available to Livingston on appeal and requesting leave to withdraw. We will affirm
the District Court’s sentence and grant counsel’s request.
I.
On February 8, 2005, a grand jury in the District of New Jersey returned an indictment
charging Livingston, a previously convicted felon, with one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (2). Pursuant to a plea agreement,
Livingston pled guilty to the charge on November 4, 2005. Although the Presentence
Investigation Report prepared by the Probation Officer indicated, in consideration of his criminal
history, that Livingston was liable for a sentencing range of 110 to 137 months under the United
States Sentencing Guidelines (“U.S.S.G.”), the statutory maximum up to which the District
Court was authorized to sentence Livingston was 120 months, making the effective Guideline
range 110 to 120 months. On February 15, 2006, the District Court sentenced Livingston to the
bottom of this range, 110 months.
On February 17, 2006, Livingston filed a notice of appeal. Livingston’s counsel filed an
Anders brief, moving to withdraw his representation on the grounds that Livingston’s appeal
presented no non-frivolous issues. Livingston’s subsequent pro se brief challenges the District
Court’s application of a four-step sentencing enhancement for possession of a firearm in
connection with another felony offense (here, drug possession with an intent to distribute)
pursuant to U.S.S.G. § 2K2.1(b)(5). We have jurisdiction to consider Livingston’s challenge
pursuant to 28 U.S.C. § 1291.
II.
Livingston argues that the District Court erred in imposing the § 2K2.1(b)(5)
enhancement because, in Livingston’s view, there were insufficient facts upon which to base the
2
enhancement. However, Livingston’s argument must fail for the simple reason that the District
Court imposed the enhancement only after Livingston and the Government agreed, in their plea
agreement, that it would apply. Livingston has not challenged the knowing and voluntary nature
of his plea agreement with the Government and, therefore, offers no reason why we should
disregard the agreement now.1
III.
Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the
district court record and “is persuaded that the appeal presents no issue of even arguable merit,
trial counsel may file a motion to withdraw, with a supporting brief, pursuant to Anders v.
California, 386 U.S. 738 (1967).” Third Circuit L.A.R. 109.2(a). “The Court’s inquiry when
counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the
rule’s requirements; and (2) whether an independent review of the record presents any non-
frivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Because counsel’s
Anders brief complied with the rule’s requirements and because our own independent review of
the record does not reveal any non-frivolous issues, we will grant counsel’s request to withdraw.
First, we are satisfied that counsel thoroughly examined the record for appealable issues
and accurately determined that no non-frivolous issues existed. Indeed, counsel in this case
considered several more arguments than Livingston himself thought to raise. Counsel
ultimately, and correctly, determined that none had merit. See United State v. Marvin, 211 F.3d
1
The Government argues that we should dismiss Livingston’s appeal because he
waived his right to such an appeal in the plea agreement. We need not rule on these
grounds, and we would not dismiss in any event. See United States v. Gwinnett, No. 06-
1766, 2007 WL 1217733 (3d Cir. Apr. 26, 2007).
3
778, 780 (3d Cir. 2000). Therefore, we are more than “satisfied that counsel adequately
attempted to uncover the best arguments” for his client. Id. at 781.
Second, this Court’s independent review of the record and caselaw does not reveal any
non-frivolous issues. As discussed, Livingston’s appeal must fail for the simple reason that he
has not challenged the knowing and voluntary nature of the plea agreement giving rise to the
very sentencing enhancement at issue.
IV.
For these reasons, we will AFFIRM the sentence imposed by the District Court
and GRANT counsel’s motion to withdraw.2
2
As a result, we conclude that is not necessary to appoint counsel to file a petition
for rehearing in this Court or a petition for writ of certiorari in the United States Supreme
Court on Livingston’s behalf. See Third Circuit L.A.R. 109.2(b).
4