UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4265

WILLIAM EARL NICHOLSON, III,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4437

LAQUAN DEMAR WHITTED,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CR-98-46)

Submitted: March 31, 2000

Decided: May 2, 2000

Before MOTZ and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Harold H. Chen, BROOKS, PIERCE, MCLENDON, HUMPHREY &

LEONARD, L.L.P., Raleigh, North Carolina; William L. Davis, III,

Lumberton, North Carolina, for Appellants. Janice McKenzie Cole,

United States Attorney, Anne M. Hayes, Assistant United States

Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

William Nicholson and Laquan Whitted appeal from their criminal

judgments convicting them of conspiracy to commit a robbery by

force and intimidation on a military reservation in violation of 18

U.S.C. § 371 (1994), and convicting Nicholson of robbery by force

and intimidation on a military reservation in violation of 18 U.S.C.

§§ 2, 2112 (1994). On appeal, both defendants challenge the sufficiency of the evidence of their convictions on all counts. In addition,

Nicholson challenges the district court's taking of judicial notice of

the fact that the robbery took place on Fort Bragg and the court's

upward departure at sentencing due to his inadequate criminal history

category under U.S. Sentencing Guidelines Manual § 4A1.3 (1998).

Finding no error, we affirm.

We find that sufficient evidence supported the convictions of both

Nicholson and Whitted. See Glasser v. United States, 315 U.S. 60, 80

(1942). The jury was entitled to make its own credibility findings

regarding co-conspirator George Floore's testimony and resolve factual differences in the testimony of Floore and the victim, Edna Hartley. In evaluating the sufficiency of the evidence, this court does not

review the credibility of the witnesses and assumes that the jury

resolved all contradictions in the testimony in favor of the govern-

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ment. See United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998),

cert. denied, 525 U.S. 1141 (1999).

We also find that the district court did not plainly err, see Fed. R.

Evid. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993), in failing to specifically instruct the jury that they could disregard judicially

noticed facts regarding jurisdiction, because any error did not seriously affect the fairness, integrity, or public reputation of the judicial

proceedings and did not result in a miscarriage of justice. At trial,

Nicholson did not contest the fact that the gas station is located on

Fort Bragg. There was testimony from three witnesses that the gas

station was located on Fort Bragg: Agent Schmitt; the cashier, Edna

Hartley; and George Floore. The jury was also instructed that they

must find that the gas station was located within the special maritime

and territorial jurisdiction of the United States. Therefore, the court

did not plainly err.

Finally, Nicholson assigns error to the court's upward sentencing

departure under USSG § 4A1.3 for an inadequate criminal history category, alleging that the court improperly relied upon an overturned

conviction. This court reviews the district court's decision to depart

upward from the guideline range for an abuse of discretion. See Koon

v. United States, 518 U.S. 81, 100 (1996); United States v. Rybicki,

96 F.3d 754, 756-57 (4th Cir. 1996). Under USSG§ 4A1.3, an inadequate criminal history category is an encouraged ground for departure. When an encouraged factor is present, the district court must

decide whether the factor is adequately accounted for in the applicable guideline range. This decision is reviewed de novo. See Rybicki,

96 F.3d at 758.

The guidelines do not require that only convictions be used to measure criminal history. See USSG § 4A1.3(e). Any information may be

considered, so long as it has sufficient indicia of reliability to support

its probable accuracy. See USSG § 6A1.3, comment. While Nicholson objected overall to an upward departure, he did not challenge the

criminal conduct outlined in the Pre-Sentence Report (PSR) regarding

the 1981 Missouri state conviction, later overturned with a resulting

acquittal. We therefore find that the court did not abuse its discretion

in considering the criminal conduct. Regardless, Nicholson's criminal

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history was so extensive that the other convictions were sufficient to

warrant the upward departure.

We therefore affirm the judgments. 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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