United States v. Vic Henson , 500 F. App'x 211 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4265
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VIC FRANCIS HENSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:11-cr-00130-JAB-1)
Submitted: November 30, 2012 Decided: December 18, 2012
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Eric D. Placke,
Mireille P. Clough, Assistant Federal Public Defenders,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Frank J. Chut, Jr., Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vic Francis Henson pled guilty to embezzlement by a
bank officer, 18 U.S.C. § 656 (2006), and aggravated identity
theft, 18 U.S.C. § 1028A(a)(1) (2006). She received a 78-month
sentence. On appeal, Henson argues that the sentencing court
erred in imposing a two-level “vulnerable victim” enhancement
and in running her sentence consecutively to another federal
sentence on convictions for bank bribery and mortgage fraud. We
affirm.
In reviewing whether a sentencing court properly
applied the Guidelines, the district court’s factual findings
are reviewed for clear error and its legal conclusions are
reviewed de novo. United States v. Osborne, 514 F.3d 377, 387
(4th Cir. 2008). We will “find clear error only if, on the
entire evidence, [the court is] left with the definite and firm
conviction that a mistake has been committed.” United States v.
Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation
marks omitted).
The Guidelines mandate that “[i]f the defendant knew
or should have known that a victim of the offense was a
vulnerable victim, increase by 2 levels.” United States
Sentencing Guidelines Manual § 3A1.1(b)(1) (2011). The
commentary to § 3A1.1 defines a “vulnerable victim” as “a person
(A) who is a victim of the offense of conviction and any conduct
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for which the defendant is accountable under § 1B1.3 (Relevant
Conduct); and (B) who is unusually vulnerable due to age,
physical or mental condition, or who is otherwise particularly
susceptible to the criminal conduct.” USSG § 3A1.1, cmt. n.2.
If the court finds a victim was vulnerable, the court must then
assess whether the defendant knew or should have known of such
unusual vulnerability. United States v. Etoty, 679 F.3d 292,
294 (4th Cir.), cert. denied, 133 S. Ct. 327 (2012).
On appeal, Henson challenges the application of the
vulnerable victim enhancement on the ground that the Government
did not establish Donald Stegall was a victim of the offense of
conviction, i.e., embezzlement. 1 We have previously held that “a
sentencing court must identify the victims of the offense, based
not only on the offense of conviction, but on all relevant
conduct.” United States v. Bolden, 325 F.3d 471, 500 (4th Cir.
2003) (case involving 1994 edition of Sentencing Guidelines);
United States v. Blake, 81 F.3d 498, 503-04 (4th Cir. 1996) (“We
therefore reject [the defendant’s] argument that, for the
purpose of § 3A1.1, ‘a victim of the offense’ is only an
individual considered a victim of the specific offense of
conviction.”); see also United States v. McCall, 174 F.3d 47,
1
Henson does not challenge the district court’s finding
that Stegall was “vulnerable” as a result of certain
limitations and his dependence on Henson.
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51-52 (2nd Cir. 1998) (holding that, although the bank rather
than the account holder is liable for an embezzlement, account
holders are nevertheless victims of such an embezzlement, and
noting that such an account holder may be a particularly
vulnerable victim where there is a substantial chance that he or
she will never discover or realize that the account has been
depleted).
Henson argues, however, that subsequent amendments to
the “vulnerable victim” Guideline have altered the criteria for
the enhancement’s application. Under the current version of the
Guidelines, a person must be a “victim of the offense of
conviction and any conduct for which the defendant is
accountable under § 1B1.3 (Relevant Conduct),” USSG § 3A1.1,
cmt. n.2, in order for the enhancement to apply. 2 Henson thus
argues the “vulnerable victim” must be a victim of the offense
of conviction and any relevant conduct. We find this argument
without merit. See United States v. Salahmand, 651 F.3d 21, 27-
29 (D.C. Cir. 2011) (holding two–level adjustment for vulnerable
victims applies not only to victims of the offense of
conviction, but also to victims of defendant’s relevant
conduct); United States v. Moon, 513 F.3d 527, 541 (6th Cir.
2
Prior to 1995, the vulnerable victim enhancement was used
when a vulnerable victim “[was] made a target of criminal
activity.” See USSG § 3A1.1, cmt. n.1 (1994).
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2008) (reaffirming that the vulnerable victim enhancement can be
properly applied based on “relevant conduct,” notwithstanding
the fact that a societal interest or a governmental entity is
the primary victim of the offense of conviction); United States
v. Zats, 298 F.3d 182, 187 (3rd Cir. 2002) (holding vulnerable
victim need not have been harmed by both offense of conviction
and by relevant conduct because the Commission could not have
intended to define “victim” more narrowly than for the offense
of conviction itself).
In a related argument, Henson posits that Stegall
cannot meet the definition of a “victim” under USSG § 2B1.1 (the
Guideline for embezzlement), because Stegall did not suffer any
pecuniary loss. Therefore, Henson argues, Stegall cannot be
considered a “vulnerable victim” for purposes of USSG
§ 3A1.1(b)(1). In support, Henson points to the commentary to
USSG § 2B1.1 which defines “victim” in relevant part as “any
person who sustained any part of the actual loss determined
under [USSG § 2B1.1] subsection (b)(1).” USSG § 2B1.1, cmt.
n.1. This argument too is without merit. See Salahmand, 651
F.3d at 29 (holding that, although individuals qualified as
victims under § 3A1.1, but not § 2B1.1, there is nothing
illogical about the Sentencing Commission providing different
definitions for different guidelines); United States v. Kennedy,
554 F.3d 415, 423–24 (3rd Cir. 2009) (holding that, although
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elderly accountholders from whom defendant stole did not satisfy
the definition of “victim” under USSG § 2B1.1(b)(2) because they
were reimbursed, they were not precluded from being “vulnerable
victims” under USSG § 3A1.1(b)(1) because “victims” under
§ 2B1.1 and § 3A1.1(b) are separate definitions). Accordingly,
we affirm the district court’s imposition of the two-level
enhancement.
Henson next argues that the district court erred in
running her sentence consecutively to her 27-month undischarged
sentence imposed in the Western District of North Carolina. Her
argument is two-fold. First, she argues her sentence is
procedurally unreasonable in this regard because the district
court did not refer to the USSG § 5G1.3 factors or offer any
explanation for its rejection of her request that the sentence
be imposed to run concurrently. Second, she argues the result
is a sentence that is “greater than necessary” to achieve the
sentencing objectives of § 3553(a).
Guideline § 5G1.3 controls the court’s imposition of a
sentence on a defendant who is subject to an undischarged term
of imprisonment. Because Henson does not argue that her
undischarged sentence pertain to offenses that are related to
the instant federal offense, subsection (c) of § 5G1.3 applies
to the calculation of her sentence. United States v. Becker,
636 F.3d 402, 407-08 (8th Cir. 2011); cf. United States v.
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Rouse, 362 F.3d 256, 262 (4th Cir. 2004) (“Generally speaking,
§ 5G1.3(b) addresses the situation in which a defendant is
prosecuted in more than one jurisdiction for related conduct.”).
Subsection (c), which is designated as a policy statement,
provides that “[i]n any other case involving an undischarged
term of imprisonment, the sentence for the instant offense may
be imposed to run concurrently, partially concurrently, or
consecutively to the prior undischarged term of imprisonment to
achieve a reasonable punishment for the instant offense.” USSG
§ 5G1.3(c).
A district court’s discretion in imposing consecutive
or concurrent sentences is bounded only by the relevant factors
that the current version of § 5G1.3(c) directs the court to
consider. United States v. Mosley, 200 F.3d 218, 224-25 (4th
Cir. 1999). Those factors include the concerns enumerated in 18
U.S.C. § 3553(a); the type and length of the prior undischarged
sentence; the time likely to be served before release on the
undischarged sentence; and the fact that the prior undischarged
sentence may have been imposed in state court rather than
federal court, or at a different time before the same or
different federal court. See USSG § 5G1.3(c), cmt. n.3(A).
Here, Henson was previously sentenced to 27 months’
imprisonment for mortgage fraud and bank bribery in the Western
District of North Carolina. The sentence in that case was
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imposed on August 11, 2011, and it remained undischarged at the
time of Henson’s sentencing on the subject offenses.
Henson claims that her sentence is unreasonable by
virtue of the district court’s failure to recite the applicable
statutory and Guidelines factors. Section 5G1.3(c) first
directs courts to consider the factors set forth in 18 U.S.C.
§ 3553(a). See USSG § 5G1.3(c), cmt. n.3(A). Here, the
district court admittedly failed to explicitly cite USSG
§ 5G1.3(c); however, it explicitly referred to the 18 U.S.C.
§ 3553(a) factors in its explanation of Henson’s sentence.
Specifically, the court took into account Henson’s history as a
good student and her regular employment. The district court
found, nevertheless, after considering deterrence, the
seriousness of the offense, and the need to protect the public,
a sentence within the middle of the advisory Guidelines range
was appropriate. The court specifically noted Henson’s conduct
in taking advantage of a vulnerable victim.
With respect to the remaining factors required by
§ 5G1.3(c), the record reveals that the court reviewed the
presentence report, which catalogued the type and length of the
prior undischarged sentences, as well as the underlying offense
conduct. See USSG § 5G1.3(c), cmt. n.3(A). Finally, Henson
submitted written arguments in support of a concurrent, or
partially concurrent, sentence under USSG § 5G1.3. Defense
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counsel again posited those same arguments at sentencing. The
Government, citing deterrence and noting these were two separate
crimes against two separate banks, objected to running the
sentences concurrently. The court actively questioned the
parties at sentencing as to the time frame of the two offenses.
A review of the record demonstrates that the
sentencing court factored Henson’s undischarged sentences and
several of the § 3553(a) considerations into its determination
to impose a consecutive sentence. See United States v. Hall,
632 F.3d 331, 336 (6th Cir. 2011) (“Though the district court
did not mention § 5G1.3 specifically, in light of its entire
explanation, it is evident that the district court considered
§ 5G1.3(c) and adequately explained its reasons for applying it
when sentencing Hall.”).
We further conclude that the district court did not
abuse its discretion in imposing a consecutive sentence in this
case. To the extent Henson argues that the sentencing court
should have concocted a hybrid Guidelines range that would be
applicable to both offenses, the application notes to § 5G1.3(c)
no longer advise such a procedure. See USSG § 5G1.3(c), cmt.
n.3(A). As we have explained, a district court need not
calculate a hypothetical combined Guidelines range to comport
with the current version of § 5G1.3(c). Mosley, 200 F.3d at
224-25.
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Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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