USA v. Justin Livingston

Filing

UNPUBLISHED OPINION FILED. [10-10051 Affirmed ] Judge: EHJ , Judge: EGJ , Judge: LHS Mandate pull date is 01/11/2011 for Appellant Justin Livingston [10-10051]

USA v. Justin Livingston e: 10-10051 Cas

Document: 00511328553 Page: 1 Date Filed: 12/21/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10051 S u m m a r y Calendar December 21, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J U S T I N LIVINGSTON, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:07-CR-316-1

B e fo r e JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. P E R CURIAM:* J u s t in Livingston pleaded guilty to one count of possessing counterfeit o b lig a t io n s in violation of 18 U.S.C. § 472 and one count of conspiracy to m an u fa ctu re counterfeit obligations of the United States in violation of 18 U.S.C. § § 371 and 471. On direct appeal, he argued that the amount of loss for which h e was held accountable, $232,300, was incorrect. This court determined that b e fo r e the district court could properly calculate the amount of loss attributable t o Livingston, it had to determine whether Livingston engaged in an
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

Dockets.Justia.com

Case: 10-10051 Document: 00511328553 Page: 2 Date Filed: 12/21/2010 No. 10-10051 u n d e r t a k in g of criminal activity with individuals other than his co-defendants a n d , if so, what was the scope of the criminal activity. See United States v. L iv in g s to n , 344 Fed. App'x 86 (5th Cir. 2009). On remand, the district court found that Livingston engaged in an u n d e r t a k in g of criminal activity in the Dallas- Fort Worth area with individuals o t h e r than his co-defendants. The district court then determined that the

a m o u n t of loss attributable to Livingston was $163,000. Before Livingston was resentenced, he objected, as he did at his initial s e n te n c in g , to the applicability of § 3B1.1(a)'s organizer and leader e n h a n c e m e n t , which increased his base offense level four levels. The district c o u r t again overruled Livingston's objection. O n appeal, Livingston does not challenge the district court's finding that $ 1 6 3 ,0 0 0 is an accurate accounting of the amount of loss attributable to him. He d o e s , however, challenge the imposition of the four-level organizer and leader e n h a n c e m e n t . In response, the Government contends that Livingston may not r a is e this enhancement issue on appeal. T h e Government is correct. Although Livingston objected at his initial s e n te n c in g to the organizer and leader enhancement, he did not challenge the e n h a n c e m e n t in his initial appeal. Accordingly, under the mandate rule,

L iv in g s to n waived litigation or relitigation of this issue. See United States v. L e e , 358 F.3d 315, 321 (5th Cir. 2004). Additionally, the application of this e n h a n c e m e n t was not within the scope of this court's mandate. See Livingston, 3 4 4 Fed. App'x at 87-90; United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2 0 0 2 ). Moreover, Livingston has not shown that his challenge to the

e n h a n c e m e n t falls within any of the exceptions to the mandate rule. Matthews, 3 1 2 F.3d at 657; Lee, 358 F.3d at 320. A c c o r d in g ly , Livingston's sentence is AFFIRMED.

2