                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-4314


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

PHILLIP A. HARVIN,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00209-F-1; 5:07-cr-00319-F)


Submitted:    January 5, 2009                 Decided:   January 29, 2009


Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Phillip A. Harvin pled guilty to two bank robberies,

one charged by indictment and one by a criminal information.                             In

sentencing      Harvin,       the   district          court   considered      uncontested

information      that         he    had      committed        four    additional       bank

robberies.           The      court       declined       to    depart      downward      for

substantial      assistance         on    the       government’s     motion,     see   U.S.

Sentencing Guidelines Manual § 5K1.1, p.s. (2007), and instead

departed   upward        from      the    advisory       guideline      range    of    57-71

months to impose a term of 135 months imprisonment.                                   Harvin

contends   on       appeal      that      the     sentence     was   procedurally        and

substantively unreasonable.                We affirm.

           Harvin first argues that the sentence was procedurally

unreasonable because the court erred factually in finding that

he committed six bank robberies when the only evidence of the

sixth robbery was his own uncorroborated admission.                           We review a

sentence for abuse of discretion.                      See Gall v. United States,

128 S. Ct. 586, 597 (2007).                     “The first step in this review

requires   us    to      ‘ensure      that      the   district     court     committed   no

significant         procedural           error,       such    as     . . .      improperly

calculating     .    .    .   the   Guidelines         range.’”      United     States   v.

Osborne, 514 F.3d 377, 387 (4th Cir.) (quoting Gall, 128 S. Ct.

at 597), cert. denied, 128 S. Ct. 2525 (2008).                        We then consider

the substantive reasonableness of the sentence imposed, taking

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into account the totality of the circumstances.                                   Gall, 128 S.

Ct.     at    597.         A     significant          procedural          error    may    include

“selecting a sentence based on clearly erroneous facts.”                                        Id.;

see also United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.

2008) (quoting Gall).

               Harvin contends that the sixth bank robbery was not

established by any evidence apart from his own statement, which

would        not     be        enough     to     establish           his     guilt,       without

corroboration,            if     he     were     being    tried        for     that      robbery.

However,       for        sentencing       purposes,          the    district         court      may

consider       “any        relevant       information          without       regard       to     its

admissibility under the rules of evidence applicable at trial,

provided       that        the       information        has     sufficient         indicia        of

reliability to support its probable accuracy.”                                    USSG § 6A1.3,

p.s.; see also 18 U.S.C. § 3661 (2006) (sentencing judge not

limited to information admissible at trial).

               The district court had before it Harvin’s statement

that    he    committed          a    fourth    uncharged       bank       robbery,      to    which

Harvin       made    no    objection,          even    though       the    probation      officer

noted that the statement was uncorroborated.                                  The court also

heard a federal agent testify at sentencing that he was the case

agent for “four of the six robberies.”                              Again, Harvin made no

objection.          We conclude that the district court did not plainly

err in accepting the premise that Harvin robbed six banks and

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basing the departure on the total uncharged conduct.                            Further,

because Harvin’s claim that the departure was based on a factual

error is without merit, we are satisfied that he has not shown

that the sentence was the result of procedural error or that it

is otherwise unreasonable.

              Harvin also asserts that, in deciding not to depart

for   substantial        assistance     despite        the    government’s      § 5K1.1

motion, the district court failed to meet its obligations under

18 U.S.C. § 3553(a) (2006), making the sentence procedurally and

substantively       unreasonable.         However,         even   after   the    Supreme

Court’s    decision      in    United   States        v.     Booker,   543    U.S.    220

(2005), this court lacks “the authority to review a sentencing

court’s denial of a downward departure unless the court failed

to understand its authority to do so.”                     United States v. Brewer,

520 F.3d 367, 371 (4th Cir. 2008).                   Harvin does not suggest that

the district court failed to understand its authority to depart

in his case, nor does the record indicate any uncertainty on

this point.         Therefore, the district court’s decision is not

reviewable.        Id.

              We    therefore    affirm        the    sentence      imposed     by    the

district   court.         We   dispense    with       oral    argument    because     the

facts   and    legal     contentions      are    adequately       presented      in   the




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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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