                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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



       1
      During 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.

                                              - 2 -
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.

                                    - 3 -
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,


                                    - 4 -
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).

                                      - 5 -
           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.

                                    - 6 -
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


                                     - 7 -
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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