UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4410

DANNY RECARDO HOOKS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-96-229)

Submitted: January 13, 1998

Decided: January 27, 1998

Before HALL and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert B. Rigney, KNIGHT, DUDLEY, CLARKE & DOLPH,
P.L.C., Norfolk, Virginia, for Appellant. Helen F. Fahey, United
States Attorney, Dana O. Washington, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Danny Recardo Hooks appeals his conviction and sentence for
theft of government property, in violation of 18 U.S.C. § 641 (West
Supp. 1997). Hooks contends that: (1) the evidence was insufficient
to support his conviction; (2) the district court abused its discretion
in denying his motion for new trial based on newly discovered evi-
dence; (3) the district court erred in awarding a two-level enhance-
ment under U.S. Sentencing Guidelines Manual§ 2B1.1(b)(4)(A)
(1995), for more than minimal planning; and (4) the district court
erred in upwardly departing from the applicable guideline range under
U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (1995).

We have reviewed the record and the briefs of the parties and hold
that the evidence was sufficient for a reasonable jury to find Hooks
guilty of theft of government property in excess of $100 beyond a rea-
sonable doubt. See United States v. Capers, 

, 1107 (4th
Cir. 1995); see also United States v. Burgos, 

, 862-63 (4th
Cir. 1996), cert. denied, ___ U.S. ___, 

(U.S. Feb.
24, 1997) (No. 96-6868). Hooks and an accomplice gained entry, by
use of a contractor's license, to a decommissioned Navy ship. They
willfully removed nine pieces of barstock metal from the ship, valued
substantially more than $100, without authorization. They were
arrested when they attempted to transport the barstock off the base.
These facts clearly establish every element of the offense beyond a
reasonable doubt.

The district court did not abuse its discretion in denying Hooks'
motion for new trial. See United States v. Chavis, 

, 793
(4th Cir. 1989). The allegedly exculpatory evidence upon which
Hooks sought a new trial was not in the government's possession
prior to trial and, in any event, would not have affected the outcome.
See id.; see generally United States v. Tierney, 

, 864 (8th
Cir. 1991).

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The district court's finding that the offense involved more than
minimal planning was not clearly erroneous because Hooks took
numerous steps to perpetrate the scheme, including borrowing a vehi-
cle to transport the property, devising an elaborate plan to deceive the
guards, and making several trips on and off of the ship to remove the
goods. See United States v. Pearce, 

, 26 (4th Cir. 1995).

The district court's upward departure of two offense levels because
Hooks' criminal history category VI did not adequately represent
Hooks' past criminal conduct and tendency to recidivism was not an
abuse of discretion. Hooks had many convictions which were not
counted in his criminal history score because they were too old; this
is an encouraged basis for departure. See United States v. Koon, ___
U.S. ___, 

, 4516-17 (U.S. June 13, 1996) (Nos.
94-1664/8842); United States v. Rybicki, 

, 756-58 (4th
Cir. 1996). The court considered the intervening offense level, and the
extent of the departure was not an abuse of discretion. See United
States v. Cash, 

, 561-62 & nn.6-7 (4th Cir. 1992).

Hooks' conviction and sentence are accordingly affirmed. We dis-
pense 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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