United States v. All ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4205
DIANNE DURHAM ALL,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CR-96-55)
Submitted: August 31, 1998
Decided: September 16, 1998
Before ERVIN and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Dorothy P. Dillon, Rocky Mount, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Jennie L.M. Waering, Assistant
United States Attorney, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Diane Durham All appeals the 36-month sentence she received for
bank fraud, 18 U.S.C. § 1344 (1994). In her first appeal, we remanded
for resentencing because the district court departed without giving
reasonable notice. See United States v. All, No. 96-4883 (4th Cir.
Nov. 18, 1997) (unpublished). On remand, the district court imposed
the same sentence. All contests the district court's upward departure
pursuant to USSG § 5K2.5, p.s. (Property Damage or Loss),* and
USSG § 5K2.8, p.s. (Extreme Conduct). We affirm.
Between 1988 and 1995, while ostensibly assisting her retired par-
ents with their financial affairs, All converted $133,681 of their
money to her own use. This amount represented most of her parents'
life savings. The loss left them with no income except Social Secur-
ity. All made no objection to her sentence calculation, which included
an adjustment for vulnerable victims. See USSG § 3A1.1. Her guide-
line range was 15-21 months imprisonment. The district court deter-
mined that the two-level vulnerable victim adjustment did not
adequately account for the harm All's offense had caused and
departed upward to a sentence of 36 months imprisonment.
A district court's decision to depart is reviewed for abuse of discre-
tion. Koon v. United States, 518 U.S. 81, 99-100 (1996). A departure
may be based on a factor for which the Sentencing Commission
encourages departure unless the factor is already taken into account
in the applicable guidelines. If the factor is taken into account, a
departure may be affirmed "only if the factor is present to an excep-
tional degree or in some way makes the case different from the ordi-
nary case where the factor is present." United States v. Brock, 108
F.3d 31, 34 (4th Cir. 1997) (quoting Koon, 518 U.S. at 96). The dis-
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*U.S. Sentencing Guidelines Manual (1997).
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trict court's decision that an encouraged factor has not been ade-
quately taken into account by the applicable guideline is reviewed de
novo. See United States v. Rybkcki, 96 F.3d 754, 757-58 (4th Cir.
1996). The district court's decision that the facts and circumstances
of the case warrant departure and the extent of the departure are
reviewed for abuse of discretion. Id. at 758. Here, while the district
court based its departure on two encouraged factors, All argues that
her conduct was not extreme and that her parents' vulnerability and
the amount of their loss were taken into account in the sentence calcu-
lation.
Examples of extreme conduct cited in USSG § 5K2.8 include tor-
ture, gratuitous infliction of injury, or prolonging of pain or humilia-
tion. It is the last example which resonates in this case. The district
court found that All had destroyed her parents' life savings and retire-
ment income, leaving them with a bleak future. The court also deter-
mined that All had inflicted unusual pain on her parents which
warranted a departure for extreme conduct, and that, because the harm
was not entirely taken into account under the fraud guideline, a depar-
ture was justified for the property loss.
Although the district court focused on USSG § 5K2.5 and USSG
§ 5K2.8, the commentary to USSG § 2F1.1 provides additional sup-
port for the court's decision to depart. Application Note 10 recognizes
that in some fraud cases the monetary loss does not fully account for
the harmfulness and seriousness of the defendant's conduct. In such
cases, reasonably foreseeable non-monetary harm, psychological
harm, or the knowing endangerment of the solvency of a victim may
be the basis for a departure. See USSG § 2F1.1, comment. (n.10);
United States v. Dobish, 102 F.3d 760, 763 (6th Cir. 1996) (prolonged
nature of crime, psychological injury and threat to victims' solvency
warranted departure). Although the district court did not cite this
commentary, its reasoning was similar. Our review of the record per-
suades us that the district court did not err in deciding that in this case
the guidelines did not fully account for the harm done. We find fur-
ther that the district court did not abuse its discretion in deciding to
depart, or in departing to a sentence of thirty-six months.
The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
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in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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