                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4751


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LAVONTE LAMONT HALLMAN,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00097-MOC-DCK-1)


Submitted:   June 26, 2014                 Decided:   July 10, 2014


Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Haakon Thorsen, THORSEN LAW OFFICES, Charlotte, North Carolina,
for Appellant.     Anne M. Tompkins, United States Attorney,
William M. Miller, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               A jury convicted Lavonte Lamont Hallman of conspiracy

to   commit     robbery       affecting       interstate       commerce       by    force        or

violence (Count One), 18 U.S.C. § 1951 (2012) (“Hobbs Act”);

robbery       affecting       interstate       commerce     by       force    or       violence

(Count Two), 18 U.S.C. § 1951; using and carrying a firearm

during and in relation to a crime of violence (Count Three), 18

U.S.C.    §    924(c)       (2012);     and    possession        of    a     firearm        by    a

convicted      felon       (Count    Four),     18    U.S.C.     §    922(g)(1)         (2012).

Designated       a        career     offender,       Hallman     received          a     below-

Guidelines sentence of 294 months’ imprisonment.

               On appeal, Hallman raises four claims, all of which

stem from his argument that his robbery of an O’Reilly auto

parts    store       in    Charlotte,    North       Carolina,        had    no    impact        on

interstate commerce and therefore this case does not fall within

the scope of the Hobbs Act.                Specifically, he claims that there

was insufficient evidence to sustain his Hobbs Act convictions;

the district court erred in denying his motion to strike the

introduction of the indictment related to the store’s commerce-

related activities; there was no basis for federal jurisdiction;

and his sentence was disproportionately high.                         We affirm.

               Hallman       first    asserts      that    his       conviction        is    not

supported by sufficient evidence.                    We review challenges to the

sufficiency of evidence de novo.                   United States v. Roe, 606 F.3d

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180, 186 (4th Cir. 2010).           We are “obliged to sustain a guilty

verdict that, viewing the evidence in the light most favorable

to   the   prosecution,     is    supported     by   substantial    evidence.”

United States v. Osborne, 514 F.3d 377, 385 (4th Cir. 2008)

(internal quotation marks and citations omitted).                  Substantial

evidence in the context of a criminal action is “evidence that a

reasonable    finder   of        fact   could    accept   as    adequate   and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”      United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc).

            The Hobbs Act 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).                The Hobbs Act’s

“jurisdictional predicate is satisfied where the instant offense

has a ‘minimal effect’ on interstate commerce.”                 United States

v. Tillery, 702 F.3d 170, 174 (4th Cir. 2012), cert. denied, 133

     *
       In pertinent part, the Hobbs Act provides: “Whoever in any
way or degree obstructs, delays, or affects commerce . . . by
robbery . . . or attempts or conspires so to do, or commits or
threatens physical violence to any person or property in
furtherance of a plan or purpose to do anything in violation of
this section shall be fined under this title or imprisoned not
more than twenty years, or both.” 18 U.S.C. § 1951(a).



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S. Ct. 2369 (2013).            For purposes of the Hobbs Act, a robbery

“has a minimal effect on interstate commerce when it depletes

the assets of an inherently economic enterprise,” and in making

this determination, this court “do[es] not look at the impact of

the immediate offense, but whether the relevant class of acts

has    such    an    impact.”       Id.     (internal         quotation    marks     and

citations omitted); see also United States v. Taylor, ___ F.3d

___,   2014    WL    2535474    (4th     Cir.    June    6,    2014)   (No.   13-4316)

(reaffirming that the class of activities are considered in the

aggregate in order to determine whether they impact interstate

commerce).

              Hallman argues “there was absolutely no interference

with interstate commerce, [] no probable effect . . . and no

depletion of the store’s assets.”                 But an impact to interstate

commerce is not difficult to show.                  Taylor, ___ F.3d at ___,

2014 WL 2535474 at *3.              Contrary to Hallman’s argument, the

minimal impact on interstate commerce may be shown by “proof of

probabilities        without    evidence    that    any       particular   commercial

movements were affected.”               United States v. Brantley, 777 F.2d

159,   162    (4th    Cir.     1985).      Having       reviewed    the    record,   we

conclude that the evidence was more than sufficient to establish

the interstate commerce element essential to sustain Hallman’s

convictions     under     the    Hobbs     Act    and    that    his   challenge     to

federal jurisdiction on this basis likewise fails.

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               Next,     Hallman      claims       the    district     court     erred      in

denying his motion to strike the introduction in the indictment,

which   detailed         the   ways    in    which       the    auto   parts    store      was

engaged      in    interstate         commerce.            “[A]     motion      to    strike

surplusage from the indictment should be granted only if it is

clear that the allegations are not relevant to the charge and

are inflammatory and prejudicial.”                       United States v. Williams,

445   F.3d     724,      733   (4th    Cir     2006)      (internal       quotations       and

citation omitted); see also United States v. Hedgepeth, 434 F.3d

609, 612 (3d Cir. 2006) (“[I]nformation that is prejudicial, yet

relevant     to    the    indictment,        must    be    included       for   any    future

conviction to stand and information that is irrelevant need not

be    struck      if   there    is    no    evidence       that     the    defendant       was

prejudiced by its inclusion.”).

               Here,     the   allegations          in    the     introduction        to   the

indictment were clearly related to the auto parts store’s ties

to interstate commerce, a necessary component of the Hobbs Act

charges.       We further conclude that the district court correctly

determined that that statement did not contain inflammatory or

unfairly       prejudicial         allegations           and    that      it,   therefore,

properly denied the motion to strike.

               Last, Hallman claims that he has been subject to cruel

and unusual punishment because his sentence is disproportionate

to the sentence the state would have imposed for the robbery.

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We review de novo challenges to sentences on Eighth Amendment

grounds.        United States v. Malloy, 568 F.3d 166, 180 (4th Cir.

2009).          The     Eighth       Amendment           forbids      cruel    and    unusual

punishments and implicitly requires that a criminal sentence be

proportionate to the crime or crimes of conviction.                                  Solem v.

Helm, 463 U.S. 277, 284 (1983).                            We recently clarified that

proportionality             review       is        available       for   a     term-of-years

sentence.       United States v. Cobler, 748 F.3d 570, 579 (4th Cir.

2014); see also United States v. Hashime, 734 F.3d 278, 287-88

(4th     Cir.     2013)       (King,          J.,       concurring)      (explaining        that

proportionality review is available for sentences less than life

without possibility of parole).

            In        analyzing      a   claim          that   a   sentence    violates      the

Eighth    Amendment,          we   must       first       decide     whether    a    threshold

comparison       of    the    gravity         of    a    defendant’s     offenses     and    the

severity     of       his    sentence         leads       to   the   inference       that    his

sentence is grossly disproportionate to his crimes.                             Cobler, 748

F.3d at 579-80.             In the “rare case” that a defendant establishes

this inference, “the [C]ourt should then compare the defendant’s

sentence with the sentences received by other offenders in the

same jurisdiction and with the sentences imposed for the same

crime in other jurisdictions.”                      Graham v. Florida, 560 U.S. 48,

60 (2010).



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               We conclude that Hallman cannot show that his below-

Guidelines      sentence      of   294       months’      imprisonment     presents     the

“rare    case”        sufficient        to     raise       an     inference     of   gross

disproportionality.            His Guidelines range was generated by his

career offender status and, in any event, the district court

granted a downward variance because the Hobbs Act robbery in

this    case    was    not    as    severe         as   other     potential     Hobbs   Act

offenses.         We    therefore        reject         Hallman’s     Eighth     Amendment

challenge to his sentence.

               Accordingly,        we    affirm         Hallman’s     convictions       and

sentence.       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




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