United States v. Mayo

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
2-19-2003
USA v. Mayo
Precedential or Non-Precedential: Non-Precedential
Docket 01-4013
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Recommended Citation
"USA v. Mayo" (2003). 2003 Decisions. Paper 798.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-4013
UNITED STATES OF AMERICA
v.
ANTHONY MAYO,
a/k/a Billy Silks
Anthony Mayo,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Criminal No. 00-cr-00336-2
(Honorable Sylvia H. Rambo)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 14, 2003
Before: SCIRICA, BARRY and SMITH, Circuit Judges
(Filed: February 14, 2003 )
OPINION OF THE COURT
SCIRICA, Circuit Judge.
The defendant, Anthony Mayo, appeals from the judgment of sentence. We will
affirm.
I.
The District Court sentenced Mayo to 276 months imprisonment after he pleaded
guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
Mayo appeals from the sentence on two grounds. First, Mayo asks that his sentence be
vacated and the matter be remanded to allow him to make objections to the pre-sentence
report. Second, Mayo claims the District Court erroneously concluded that his criminal
history category did not adequately reflect his past criminal conduct under United States
Sentencing Guideline § 4A1.3.1
II.
The pre-sentence report delineated the potential grounds for adjustment in
Mayo’s sentence, yet no objections were raised. Nor did Mayo make any objections at the
sentencing hearing. Therefore, we review for plain error. United States v. Knobloch, 131
F.3d 366, 370 (3d Cir. 1997) (providing that issues not raised before the district court are
reviewed only for plain error) (citations omitted). Reversal for plain error requires us to
find: 1) an error; 2) that is plain; 3) that affects Mayo’s substantial rights and 4) that
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U.S.S.G. § 4A1.3 provides, “[i]f 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.” Id.
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“seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732 (1993).
The transcript of the sentencing hearing reflects that the District Court twice asked
Mayo if he had any objections to the pre-sentence report. Following the first inquiry, the
Court granted Mayo a half hour recess to confer with his attorney. After Mayo and his
attorney returned, the District Court again asked if there were any objections. Neither
Mayo nor his attorney objected. On appeal Mayo does not indicate what objections he
would like to make.
Mayo argues the District Court failed to determine that his criminal history score
significantly under-represented his past criminal conduct. The District Court expressly
stated, however, that Mayo’s “criminal history category of six significantly under-
represents the seriousness of defendant’s criminal history.” The District Court explained:
The defendant has a history of violent offenses and has been undeterred by
previous terms of incarceration. There is a strong likelihood of recidivism.
Defendant has four prior convictions that were not assigned criminal history
points for various reasons. He had two juvenile matters for which he
admitted guilt but did not receive criminal history points.
U.S.S.G. § 4A1.3(a) provides that “sentences not used in computing the criminal
history” may constitute “reliable information” that the defendant’s criminal history under-
represents the seriousness of the defendant’s criminal past. Id. The juvenile offenses
excluded from the computation of Mayo’s criminal history points were “for conduct
similar to the instant offense.” United States v. Thomas, 961 F.2d 1111, 1116 (3d Cir.
1992) (citation omitted). Accordingly, they provided an appropriate basis for an upward
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departure. Id. The Commentary provides that the likelihood of recidivism should guide a
court’s decision to make an upward departure. U.S.S.G. § 4A1.3, cmt. Each of the reasons
upon which the District Court relied was valid.
III.
For the foregoing reasons, the judgment of sentence will be affirmed.
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Anthony J. Scirica
Circuit Judge
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