United States v. Frank Livingston

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 13, 2023
• Docket: 18-4177
• Status: Unpublished

Opinion

USCA4 Appeal: 18-4177 Doc: 32 Filed: 01/13/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4177

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANK LIVINGSTON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:17-cr-00109-MOC-DCK-1)

Submitted: January 11, 2023 Decided: January 13, 2023

Before AGEE and DIAZ, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: William D. Auman, AUMAN LAW OFFICES, Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 18-4177 Doc: 32 Filed: 01/13/2023 Pg: 2 of 3

PER CURIAM:

Frank Livingston pled guilty, pursuant to a written plea agreement, to possession of

a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court

determined that Livingston had sustained at least three prior convictions for violent felonies

or serious drug offenses and sentenced him pursuant to the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e), to 180 months’ imprisonment. On appeal, Livingston’s

counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that

there are no meritorious grounds for appeal. Although informed of his right to file a pro

se supplemental brief, Livingston has not done so. The Government has declined to file a

response. We affirm.

Before accepting a guilty plea, the district court must conduct a plea colloquy in

which it informs the defendant of, and determines the defendant understands, the rights he

is relinquishing by pleading guilty, the charge to which he is pleading, and the applicable

maximum and mandatory minimum penalties he faces. Fed. R. Crim. P. 11(b)(1); United

States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The district court also must ensure

that the plea is voluntary and not the result of threats, force, or promises not contained in

the plea agreement, Fed. R. Crim. P. 11(b)(2), and “that there is a factual basis for the plea,”

Fed. R. Crim. P. 11(b)(3). Here, although the magistrate judge failed to explicitly advise

Livingston that his right to counsel extended to every stage of the criminal process and that

the court was obligated to impose a special assessment, cf. Fed. R. Crim. P. 11(b)(1)(D),

(L), nothing in the record suggests that these minor errors affected Livingston’s decision

to plead guilty, and Livingston was ultimately sentenced to the 180-month sentence agreed

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upon in the parties’ plea agreement. We therefore conclude that Livingston entered his

plea knowingly and voluntarily, and that a factual basis supported the plea. * See DeFusco,

949 F.2d at 116, 119-20.

In accordance with Anders, we have reviewed the record in its entirety and have

found no meritorious issues for appeal. Accordingly, we affirm the district court’s

judgment. This court requires that counsel inform Livingston, in writing, of the right to

petition the Supreme Court of the United States for further review. If Livingston requests

that a petition be filed, but counsel believes that such a petition would be frivolous, then

counsel may move in this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Livingston.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

* In Rehaif v. United States, the Supreme Court held that a § 922(g) offense requires the Government to prove both that the defendant knew he possessed a firearm and that he knew of his prohibited status. 139 S. Ct. 2191, 2200 (2019). This case was previously held in abeyance for United States v. Sitton, 21 F.4th 873 (4th Cir. 2022), which was expected to address the impact of Rehaif on the validity of a § 922(g) conviction following a guilty plea. The Supreme Court has since held that “a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon.” Greer v. United States, 141 S. Ct. 2090, 2100 (2021); see United States v. Moody, 2 F.4th 180, 197-98 (4th Cir. 2021) (clarifying that Rehaif does not require Government to prove defendant knew his possession of a firearm was prohibited, but only that he knew his status as a felon). In light of Livingston’s acknowledgement during his plea colloquy that he previously had been convicted of a felony, we find no plain Rehaif error in the magistrate judge’s acceptance of Livingston’s guilty plea.