United States v. Green , 251 F. App'x 189 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4939
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MONTE ALEXANDER GREEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-00335-TLW)
Submitted: October 10, 2007 Decided: October 19, 2007
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Reginald I. Lloyd, United
States Attorney, A. Bradley Parham, Assistant United States
Attorney, Thomas E. Booth, DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Monte Alexander Green appeals his jury convictions and
315-month sentence for attempted robbery in violation of the Hobbs
Act, 18 U.S.C. § 1951(a) (2000), and being a felon in possession of
a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a(2), 924(e)
(2000). The charges stemmed from a 2003 attempted robbery at a
pawn shop in Florence, South Carolina.1 Green contends the
district court abused its discretion in admitting evidence
pertaining to a prior pawn shop robbery, the evidence was
insufficient to establish that his attempted robbery interfered
with commerce, and that his sentence was unreasonable.
Green challenges the district court’s admission of
evidence pertaining to a 2000 pawn shop robbery because the
Government gave notice of its intent to admit the evidence only
four days before trial.2 This court reviews a district court’s
determination of the admissibility of evidence under Fed. R. Evid.
404(b) for abuse of discretion. United States v. Queen, 132 F.3d
1During the same trial, Green was also tried on a bank robbery
charge, based on a 2004 robbery of a the First Federal Bank in
Florence, and a charge of using a firearm in furtherance of a crime
of violence. Green was acquitted on the firearm charge. The jury
deadlocked with respect to the bank robbery charge, and the court
declared a mistrial.
2
The court admitted the evidence because it was relevant to
the issue of intent. Green does not argue that the evidence was
inadmissible for this purpose under Rule 404(b), only that the
evidence should have been excluded on the basis of inadequate
notice.
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991, 995, 997 (4th Cir. 1997). In order to introduce evidence
under Rule 404(b), “the prosecution in a criminal case shall
provide reasonable notice in advance of trial.” Fed. R. Evid.
404(b).
Green does not allege that the Government willfully
delayed notification, and the court explicitly concluded the
Government had not withheld notice in bad faith.3 Green suggests
that, even if good cause existed for the failure to provide earlier
notice, late notice rendered the evidence inadmissible. This
argument is contrary to Rule 404(b), which permits the admission of
evidence even in the absence of any pretrial notice, when “good
cause” excuses the failure to provide such notice. Fed. R. Evid.
404(b). The court indicated that it would consider continuing the
trial for a day to allow defense counsel additional time to
prepare. Counsel declined to request a continuance. Under these
circumstances, the district did not abuse its discretion in
admitting the evidence.
Green also contends there was insufficient evidence to
support the commerce element of his Hobbs Act attempted robbery
conviction. This court reviews sufficiency of the evidence
challenges by determining whether, viewing the evidence in the
light most favorable to the Government, any rational trier of fact
3
The Government learned that Green robbed a pawn shop several
years earlier in a strikingly similar manner to the charged
attempted robbery, approximately one week before trial.
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could find the essential elements of the crime beyond a reasonable
doubt. Glasser v. United States, 315 U.S. 60, 80 (1942); United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). This
court will uphold the jury’s verdict if there is substantial
evidence to support it, and will reverse only in those rare cases
“where the prosecution’s failure is clear.” United States v.
Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation
omitted).
The Hobbs Act, 18 U.S.C. § 1951(a), makes it a crime to
commit robbery or extortion to obstruct, delay, or affect commerce
or the movement of any commodity in commerce. “A Hobbs Act
violation requires proof of two elements: (1) the underlying
robbery or extortion crime, and (2) an effect on interstate
commerce.” United States v. Williams, 342 F.3d 350, 353 (4th Cir.
2003) (citation omitted). The second element may be met even when
the “impact upon commerce is small, and it may be shown by proof of
probabilities without evidence that any particular commercial
movements were affected.” United States v. Bailey, 990 F.2d 119,
125 (4th Cir. 1993) (internal quotation omitted); see United
States v. Augello, 451 F.2d 1167, 1169-70 (2d Cir. 1971) (“[I]t is
enough that the extortion in any way or degree affects commerce,
though its effect be merely potential or subtle.”).
Here, the shop owner testified he purchased supplies from
out-of-state suppliers, sold pawned items to out-of-state entities,
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and between thirty to forty percent of his customers came from
across state lines. Further, the shop owner testified he closed
the shop on the day of the robbery.4 This evidence was sufficient
to establish the commerce element essential to sustain Green’s
conviction under 18 U.S.C. § 1951.
Finally, Green challenges the reasonableness of his
sentence. After United States v. Booker, 543 U.S. 220 (2005), a
district court is no longer bound by the range prescribed by the
sentencing guidelines. A district court’s decision to depart from
the advisory guidelines is reviewed for reasonableness. United
States v. Dalton, 477 F.3d 195, 197 (4th Cir. 2007). In reviewing
a sentence outside the guidelines range, this court must consider
“whether the sentencing court acted reasonably both with respect to
its decision to impose such a sentence and with respect to the
extent of the divergence from the guideline range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).
A sentence is unreasonable if the “court provides an inadequate
statement of reasons or relies on improper factors in imposing a
sentence outside the properly calculated advisory sentence range.”
Id.
4
We reject the argument that business records are required to
satisfy the commerce element. See United States v. Haywood, 363
F.3d 200, 210-11 (3d Cir. 2004)(police officer’s testimony that bar
had out of state suppliers sufficient to establish commerce
element, rejecting argument that business records or expert
testimony required).
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Relying on USSG § 4A1.3, the district court imposed a
sentence of 315 months. This is fifty-three months, or twenty
percent, above the top of the pre-departure advisory range (262
months). According to USSG § 4A1.3, a district court may depart
upward from an applicable guidelines range if “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.” USSG
§ 4A1.3. In deciding whether a departure is warranted under
§ 4A1.3, a sentencing court may consider uncounted prior sentences
and prior similar adult conduct not resulting in criminal
conviction. USSG § 4A1.3(a)(2)(A), (E).
Green contends the district court improperly based its
decision to depart on the bank robbery, for which he was tried but
not convicted, and on the 2000 pawn shop robbery, for which he was
never charged. Green points out that application of the career
offender provision increased his guidelines range beyond what it
would have been had he been convicted of both crimes and argues
that his pre-departure range already accounted for the conduct.5
However, Green was classified as a career offender based on two
specific, earlier criminal convictions; that enhancement did not
encompass or reflect the bank robbery or the 2000 pawn shop
5
In the absence of the career offender enhancement, Green’s
advisory guidelines range would have been 130 to 162 months.
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robbery. Moreover, although additional convictions will not affect
the criminal history category if a defendant is in the highest
criminal history category, the guidelines provide that upward
departures may still be warranted in these circumstances. USSG
§ 4A1.3(a)(4)(B); Dalton, 477 F.3d at 199.
Furthermore, we find no error in the court’s reliance on
prior adult and juvenile convictions, for which no criminal history
points were assessed. While the absence of attorney representation
prohibits assessment of criminal history points, the criminal
conduct may be considered for purposes of a departure under
§ 4A1.3. See § 4A1.2, comment. (n. 6). Additionally, the court
explicitly did not focus on Green’s juvenile adjudications, but
rather considered them in the context of a broad pattern of
recidivism. See United States v. Lawrence, 349 F.3d 724, 727-28
(4th Cir. 2003).
The district court’s decision was based, not only on
uncounted sentences and conduct not resulting in conviction, but
also on the court’s observation that Green’s prior sentences had
not had “much deterrent effect.” The court observed, for example,
that Green committed the bank robbery and the attempted robbery of
the pawn shop shortly after his release from incarceration. The
court further determined that Green demonstrated a “propensity to
commit violent offenses” similar to the conduct for which he was
convicted. The court indicated that it carefully considered the
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factors set forth in 18 U.S.C. § 3553(a) and selected an
“appropriate” sentence of 315 months. Accordingly, the district
court sufficiently articulated its reasons for departing from the
guidelines range and that the sentence imposed was reasonable.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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