United States of America v. Frank Livingston

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.

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