US v. Phillip Harvin

Filing 920090129

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4314 UNITED STATES OF AMERICA, Plaintiff Appellee, v. PHILLIP A. HARVIN, Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. sentencing information robberies. substantial Harvin, that The the he district had court considered four In uncontested bank for U.S. committed declined the to additional downward see court on depart assistance government's motion, Sentencing Guidelines Manual 5K1.1, p.s. (2007), and instead departed upward from the advisory guideline range of 57-71 Harvin and months to impose a term of 135 months imprisonment. contends on appeal that the sentence was procedurally 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. sentence for abuse of discretion. 128 S. Ct. 586, 597 (2007). requires us to `ensure that We review a See Gall v. United States, "The first step in this review the district such as court . . . United committed no significant calculating . procedural . . the error, Guidelines improperly States v. range.'" 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 2 into account the totality of the circumstances. Ct. at 597. A significant procedural error Gall, 128 S. may include Id.; "selecting a sentence based on clearly erroneous facts." 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 if enough he to were establish being tried the his for guilt, that without robbery. may its corroboration, However, consider for "any sentencing relevant purposes, information district court to without regard 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 made no a fourth uncharged even though bank the robbery, probation to which Harvin objection, 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." objection. Again, Harvin made no We conclude that the district court did not plainly err in accepting the premise that Harvin robbed six banks and 3 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 Court's unreasonable. in United However, States v. even after the Supreme 220 decision Booker, 543 U.S. (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." 520 F.3d 367, 371 (4th Cir. 2008). United States v. Brewer, 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. reviewable. We district facts Therefore, the district court's decision is not Id. therefore We affirm the with are sentence oral imposed by the the the court. legal dispense argument because in and contentions adequately presented 4 materials before the court and argument would not aid the decisional process. AFFIRMED 5

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