UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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
3The 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 -

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
- 4 -

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

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 -

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. 
5

In the absence of the career offender enhancement, Green’s

advisory guidelines range would have been 130 to 162 months.

- 6 -

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
- 7 -

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
- 8 -

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