UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4314
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PHILLIP A. HARVIN,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00209-F-1; 5:07-cr-00319-F)
Submitted: January 5, 2009 Decided: January 29, 2009
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip A. Harvin pled guilty to two bank robberies,
one charged by indictment and one by a criminal information. In
sentencing Harvin, the district court considered uncontested
information that he had committed four additional bank
robberies. The court declined to depart downward for
substantial assistance on the government’s motion, see U.S.
Sentencing Guidelines Manual § 5K1.1, p.s. (2007), and instead
departed upward from the advisory guideline range of 57-71
months to impose a term of 135 months imprisonment. Harvin
contends on appeal that the sentence was procedurally and
substantively unreasonable. We affirm.
Harvin first argues that the sentence was procedurally
unreasonable because the court erred factually in finding that
he committed six bank robberies when the only evidence of the
sixth robbery was his own uncorroborated admission. We review a
sentence for abuse of discretion. See Gall v. United States,
128 S. Ct. 586, 597 (2007). “The first step in this review
requires us to ‘ensure that the district court committed no
significant procedural error, such as . . . improperly
calculating . . . the Guidelines range.’” United States v.
Osborne, 514 F.3d 377, 387 (4th Cir.) (quoting Gall, 128 S. Ct.
at 597), cert. denied, 128 S. Ct. 2525 (2008). We then consider
the substantive reasonableness of the sentence imposed, taking
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into account the totality of the circumstances. Gall, 128 S.
Ct. at 597. A significant procedural error may include
“selecting a sentence based on clearly erroneous facts.” Id.;
see also United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.
2008) (quoting Gall).
Harvin contends that the sixth bank robbery was not
established by any evidence apart from his own statement, which
would not be enough to establish his guilt, without
corroboration, if he were being tried for that robbery.
However, for sentencing purposes, the district court may
consider “any relevant information without regard to its
admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of
reliability to support its probable accuracy.” USSG § 6A1.3,
p.s.; see also 18 U.S.C. § 3661 (2006) (sentencing judge not
limited to information admissible at trial).
The district court had before it Harvin’s statement
that he committed a fourth uncharged bank robbery, to which
Harvin made no objection, even though the probation officer
noted that the statement was uncorroborated. The court also
heard a federal agent testify at sentencing that he was the case
agent for “four of the six robberies.” Again, Harvin made no
objection. We conclude that the district court did not plainly
err in accepting the premise that Harvin robbed six banks and
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basing the departure on the total uncharged conduct. Further,
because Harvin’s claim that the departure was based on a factual
error is without merit, we are satisfied that he has not shown
that the sentence was the result of procedural error or that it
is otherwise unreasonable.
Harvin also asserts that, in deciding not to depart
for substantial assistance despite the government’s § 5K1.1
motion, the district court failed to meet its obligations under
18 U.S.C. § 3553(a) (2006), making the sentence procedurally and
substantively unreasonable. However, even after the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220
(2005), this court lacks “the authority to review a sentencing
court’s denial of a downward departure unless the court failed
to understand its authority to do so.” United States v. Brewer,
520 F.3d 367, 371 (4th Cir. 2008). Harvin does not suggest that
the district court failed to understand its authority to depart
in his case, nor does the record indicate any uncertainty on
this point. Therefore, the district court’s decision is not
reviewable. Id.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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