UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 belowGuidelines 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 commercerelated 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 
3

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 belowGuidelines 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