United States v. Thurston ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4350
REGINALD THURSTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-96-43-F)
Submitted: February 10, 1998
Decided: March 17, 1998
Before MURNAGHAN and LUTTIG, Circuit Judges, and HALL,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
C. Christopher Henderson, Trenton, North Carolina, for Appellant.
Janice McKenzie Cole, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Yvonne V. Watford-McKinney,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Reginald Thurston appeals from his conviction of aiding and abet-
ting credit card fraud, 18 U.S.C. §§ 2, 1029(a)(5) (1994), for which
he was sentenced to thirty-seven months imprisonment. Thurston
claims, first, that the district court committed clear error by applying
the two-point enhancement for a "vulnerable victim," U.S. Sentencing
Guidelines Manual § 3A1.1(b) (1997). Second, Thurston challenges
the two-point enhancement he received for a scheme to defraud more
than one person, see USSG § 2F1.1(b)(2)(B). Third, Thurston alleges
that the district court improperly calculated the victim's loss at greater
than $10,000, thereby increasing his offense level by three points.
Fourth, Thurston claims that the evidence was insufficient to support
the jury's verdict. Finally, Thurston claims that the district court erred
in denying his motion to dismiss the indictment. Finding these claims
without merit, we affirm.
The evidence presented at Thurston's trial, viewed in the light most
favorable to the Government, see Glasser v. United States, 315 U.S.
60, 80 (1942), established the following. On November 29, 1995,
Thurston and Michael Lamar Nobles Blackman engaged Ms. Eliza-
beth Pretty Harris, a 72-year old woman, in a confidence scam known
as the "donation." Thurston approached Harris on the street and, pre-
tending to be from South Africa and speaking with a bogus accent,
asked her for directions to a nonexistent church. Blackman, pretend-
ing to be a passerby, stopped to join in the conversation and soon the
two men convinced Harris to drive them to a non-existent home in the
area so that Thurston could find lodging.
While driving in Harris' car, Thurston and Blackman determined,
through a series of scripted questions, how much credit Harris had on
her credit cards. They also managed to convince Harris that Thurston
was carrying a great deal of cash--ostensibly from Thurston's share
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of a settlement in a wrongful death action in South Africa--which he
wished to donate to a charitable cause in the United States. As a dem-
onstration of her good faith and ability to "accept" Thurston's dona-
tion, he asked Harris to withdraw $30,000 from her bank to show
him. The three went, first, to Centura Bank where Harris withdrew
$5000 on her Visa card and then to another bank where Harris with-
drew $5000 from her savings account, all of which she gave to Thur-
ston. Thurston placed the money in a bandana and pretended to wrap
it up with the "donation" he was to give Harris. At the end of the day,
after Thurston and Blackman persuaded Harris to spend another
$2800 on merchandise for the two men during a shopping spree, Har-
ris was left with a bandana containing only strips of paper.
Thurston first challenges the two-level enhancement he received
under USSG § 3A1.1(b) for an offense involving an "unusually vul-
nerable victim." Section 3A1.1(b) applies "[i]f the defendant knew or
should have known that a victim of the offense was unusually vulner-
able due to age, physical or mental condition, or that a victim was
otherwise particularly susceptible to the criminal conduct." Id. In
order to apply this provision, the district court must make two find-
ings: (1) that the victim was unusually vulnerable and (2) that the
defendant targeted the victim because of the victim's unusual vulnera-
bility. See United States v. Singh, 54 F.3d 1182, 1191 (4th Cir. 1995).
In other words, the district court must find that because of age, mental
or physical condition, or any other relevant deficit, the victim was
"more susceptible to abuse from a perpetrator than most other poten-
tial victims of the particular offense." Id. at 1191-92. And, the district
court must find that the defendant "targeted" the victim because of the
victim's unusual vulnerability. See United States v. Holmes, 60 F.3d
1134, 1136 (4th Cir. 1995). "At the very least, the victim's vulnerabil-
ity must play a role in the defendant's decision to select that victim
as the target of the crime." Singh, 54 F.3d at 1192.
Blackman testified that he and Thurston specifically targeted
elderly people, such as Harris, because they have more money and
because they were less likely to be able to identify him and Thurston.
Accordingly, we find that the district court did not clearly err in
applying the "vulnerable victim" enhancement. See United States v.
Blake, 81 F.3d 498, 503-504 (4th Cir. 1996) (upholding vulnerable
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victim enhancement where defendant specifically targeted elderly vic-
tims).
Thurston next challenges the two-level enhancement he received
under USSG § 2F1.1(b)(2)(B) (scheme to defraud more than one vic-
tim) because the indictment only charged him with attempting to
defraud Harris. It is well established that, in determining relevant con-
duct, a sentencing court may consider uncharged conduct and conduct
associated with acquitted charges. See United States v. Jones, 31 F.3d
1304, 1316 (4th Cir. 1994); USSG § 1B1.3. Blackman testified that
he and Thurston had carried out several other flim-flam schemes
directed at elderly victims (once successfully). Therefore, the district
court did not clearly err in finding that Thurston intended to defraud
more than one victim.
Next, Thurston claims that the district court clearly erred in its
determination that the victim's loss exceeded $10,000, thereby
increasing his offense level by three levels. See USSG § 2F1.1(b)(l).
Specifically, Thurston claims that the $5000 which Harris withdrew
from her savings account should not be counted because it was not
credit card fraud. Because the money which Thurston caused Harris
to withdraw from her savings account was clearly"relevant conduct"
under § 2F1.1, the district court did not clearly err in determining the
amount of loss attributable to Thurston's conduct. See USSG
§ 1B1.3(a)(1) (relevant conduct includes all acts committed by the
defendant during, and in preparation for, the offense of conviction).
Thurston next challenges the sufficiency of the evidence to support
his conviction. We must uphold a jury's verdict if there is substantial
evidence, viewed in the light most favorable to the Government, to
support the conviction. See Glasser, 315 U.S. at 80. To obtain a con-
viction for credit card fraud, 18 U.S.C. § 1029(a), the Government
must prove (1) the intent to defraud; (2) the knowing use of or traf-
ficking in an unauthorized access device (credit cards and automatic
teller machine cards); (3) to obtain things of value in the aggregate
of $1000 or more within a one-year period; and (4) an affect on inter-
state or foreign commerce. See Blake, 81 F.3d at 506. We find that
the evidence presented by the Government met the burden of proof
as to all of these elements and that, therefore, the evidence was suffi-
cient to sustain Thurston's conviction.
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Finally, Thurston alleges that the district court committed revers-
ible error by denying his motion to dismiss the indictment in which
he claimed that 18 U.S.C. § 1029 was intended to be used only in
telemarketing crimes. Thurston points to a passage in the legislative
history of § 1029 which specifically addresses only telemarketing
fraud. However, the plain and unambiguous language of § 1029 cov-
ers the conduct charged in this indictment. We find nothing in the leg-
islative history of § 1029 that justifies departing from the plain
meaning of the statutory language.
For the foregoing reasons, we affirm Thurston's conviction and
sentence. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid in the decisional process.
AFFIRMED
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