UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                          No. 98-4459
ROBERT JAMES GADSEN, a/k/a Robert
James, a/k/a Axe-Head,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-97-274)

Submitted: January 29, 1999

Decided: May 5, 1999

Before NIEMEYER and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

J. Robert Haley, Assistant Federal Public Defender, Charleston, South
Carolina, for Appellant. J. Rene Josey, United States Attorney, Sean
Kittrell, Assistant United States Attorney, Charleston, South Carolina,
for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Robert Gadsen of interfering with commerce by
threats or violence (robbery) in violation of 18 U.S.C. § 1951 (1994),
and carrying a firearm during and in relation to a crime of violence
in violation of 18 U.S.C.A. § 924(c)(1) (West Supp. 1998). The dis-
trict court sentenced him to a term of imprisonment of 240 months as
to the robbery and sixty months as to the use of a gun in conjunction
with a crime of violence, to be served consecutively with each other
and consecutively with a state prison sentence of ten years. Gadsen
now contends that the district court erred when it failed to strike the
testimony of Angelo Sherman, or in the alternative, in denying his
motion for a mistrial. Gadsen further asserts that the district court
erroneously sentenced him as a de facto career offender. Finding no
reversible error, we affirm.

On February 1, 1996, Gadsen, Sherman, Tommy Henderson, and
Alonzo Brown went to the Brunswick Bowling Alley. Henderson
remained with the car, Sherman stayed outside to act as decoy and
lookout, and Gadsen and Brown went inside the bowling alley. Once
inside the bowling alley, Gadsen and Brown went into the game
room. Shortly thereafter, Brown came out of the game room and told
the night manager, James Welch, that Gadsen had lost money in one
of the machines. When Welch walked into the game room Gadsen
pulled out a gun and demanded money from Welch. Welch immedi-
ately handed Gadsen cash from the register and Gadsen left the bowl-
ing alley.

Welch gave investigators a written statement as to the events that
evening and indicated that the robber's teeth were"messed up." He
subsequently selected Gadsen out of a photo array as the man who
robbed him at gun point. At trial, Welch again identified Gadsen as
the robber and positively identified his teeth. Sherman, testifying as

                    2
a Government witness, said that Gadsen was present at the bowling
alley and robbed Welch at gun point.

Prior to trial, Sherman informed the Government about notes he
had written to himself about the robbery while he was housed in a
state penitentiary in a different county. The Government repeatedly
requested that Sherman turn over the notes. Sherman thought the
notes were either in his jail cell or in his sister's possession, but ulti-
mately was unable to locate the notes. Despite the Government's dili-
gent efforts to obtain the notes from Sherman's sister, it was unable
to recover the notes.

After the Government advised the defense that Sherman had made
these notes, defense counsel made a motion under the Jencks Act, 18
U.S.C. § 3500 (1994), for a mistrial, or in the alternative, to strike
Sherman's testimony. The district judge denied the motion because
the notes were not in the possession or control of the Government; the
Government had made reasonable efforts to obtain the notes; and
Gadsen failed to show that the notes would be helpful to his defense.

The district judge sentenced Gadsen as a de facto career offender
based on two prior violent felony convictions that arose out of two
related armed robberies that occurred on December 10, 1987, and a
conviction for assault with intent to kill a police officer that occurred
on April 10, 1995. Gadsen timely appealed.

Gadsen first contends that the Government violated the Jencks Act1
by failing to disclose Sherman's notes. A district court's determina-
tion whether a statement is covered by the Act is not disturbed unless
clearly erroneous. See United States v. Escamilla, 467 F.2d 341, 345
(4th Cir. 1972). The relevant language of the Jencks Act requires that
the United States produce any pertinent statement of a prosecution
witness "in the possession of the United States." 18 U.S.C. § 3500(b);
cf. United States v. Atkinson, 512 F.2d 1235, 1239 (4th Cir. 1975)
(noting that there was no duty to disclose information pursuant to
_________________________________________________________________
1 The Jencks Act requires the government to disclose any statement of
a witness in the possession of the government which relates to the matter
about which the witness testified, after the witness has testified on direct
examination. See 18 U.S.C. § 3500.

                     3
Giglio v. United States, 405 U.S. 150 (1972), when Government did
not know about or possess non-disclosed information). Gadsen con-
tends that the Government knew Sherman made the notes, and there-
fore, the notes were in the constructive possession of the United
States for purposes of the Act. We must decide whether the notes at
issue, though never in the possession or control of the Government
and which never have been found, were nonetheless in the possession
of the United States within the meaning of the Act.

We reject Sherman's contention that the Government possessed the
notes because it knew that at one time Sherman had them in his for-
mer jail cell. Sherman's notes were never in the Government's pos-
session, and thus, were not materials that the Government had a duty
to make available. No Government agent ever read, saw, or touched
these notes. Further, the Government made every reasonable and dili-
gent effort to locate and obtain the notes, and Gadsen concedes the
Government did not act in bad faith. "Clearly the government cannot
be required to produce that which it does not control and never pos-
sessed or inspected." United States v. Canniff, 521 F.2d 565, 573 (2d
Cir. 1975). See also United States v. Cagnina , 697 F.2d 915, 922
(11th Cir. 1983) (noting that the Jencks Act did not apply because
grand jury material was not "in the possession of a federal prosecu-
torial agency"); United States v. Trevino, 556 F.2d 1265, 1271 (5th
Cir. 1977) (holding that a presentence report in the control of proba-
tion officer and not in the hands of the federal prosecutor is not sub-
ject to Jencks Act production). Accordingly, we reject Gadsen's
Jencks Act claim.

We also reject Gadsen's claim that the sentencing judge incorrectly
sentenced him as a de facto career offender. A defendant is a career
offender if he is at least 18 years old at the time of the current offense,
the current offense is a crime of violence or a controlled substance
offense, and he has two prior felony convictions for either a crime of
violence or a controlled substance offense. See U.S. Sentencing
Guidelines Manual § 4B1.1 (1997). At Gadsen's first sentencing
hearing, the district court determined that Gadsen was not a career
offender because the robberies for which he was convicted on April
13, 1987, were related.2 However, the court continued the sentencing
_________________________________________________________________
2 See USSG § 4A1.2 (requiring related offenses to be treated as a "sin-
gle offense" under the guidelines).

                    4
hearing to allow the Government to argue for an upward departure
pursuant to USSG § 4A1.3. At the second sentencing hearing, the dis-
trict court considered the fact that on March 15, 1996, Gadsen was
convicted of assault with intent to kill. The district court found that
although Gadsen was not convicted of assault with intent to kill prior
to robbing the Brunswick Bowling Alley, the assault offense should
count as a predicate crime for de facto career offender purposes.3
Consequently, the district court determined that his April 13, 1987,
armed robbery convictions, though related, counted as one predicate
offense and his March 15, 1996, conviction for assault with intent to
kill counted as his second predicate offense. See USSG §§ 4B1.1,
4B1.2(a), (c).

We review the district court's decision to depart for abuse of dis-
cretion. Koon v. United States, 518 U.S. 81, 99-100 (1996). A court
may depart upward from the criminal history category if it does not
adequately reflect the seriousness of the defendant's past criminal
conduct. See USSG § 4A1.3. On appeal, Gadsen proffers the imagina-
tive argument that because the April 13, 1987, convictions were
deemed related, it is not permissible to count them as even one predi-
cate offense. Thus, he contends that his March 15, 1996, conviction
for assault with intent to kill is the only qualifying predicate offense,
and that this offense alone is insufficient to trigger a de facto career
offender finding. Although the April 13, 1987, armed robbery convic-
tions were related, we find that the district court properly found that
this set of crimes qualified as a predicate offense. See USSG § 4A1.2
("[p]rior sentences imposed in related cases are to be treated as one
sentence for the purposes of § 4A1.1(a), (b), and (c)"); see also
United States v. Hines, 943 F.2d 348, 354-55 (4th Cir. 1991) (recog-
nizing that two related predicate convictions are counted as one).
Accordingly, we find that the district court's decision to sentence
_________________________________________________________________
3 The district court properly considered Gadsen's 1996 conviction for
assault with intent to kill in determining that he was a de facto career
offender. See generally United States v. Cash , 983 F.2d 558, 562 n.8,
563 (4th Cir. 1992) (holding that a defendant may be sentenced as a de
facto career offender based on an offense that would otherwise be insuf-
ficient to qualify as a predicate offense for career offender purposes
under USSG § 4B1.1). Moreover, Gadsen does not challenge the use of
this conviction in the court's career offender calculation.

                    5
Gadsen as a de facto career offender was not an abuse of discretion.
See Koon, 518 U.S. at 99-100.

For the foregoing reasons, we affirm Gadsen's conviction and sen-
tence. 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 in the decisional process.

AFFIRMED

                    6
