230 F.3d 1354 (4th Cir. 2000), 99-4585, U.S. v. Dillon

Docket Nº:99-4585.
Citation:230 F.3d 1354
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Grover L. DILLON, Sr., Defendant-Appellant.
Case Date:September 13, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1354

230 F.3d 1354 (4th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee,

v.

Grover L. DILLON, Sr., Defendant-Appellant.

No. 99-4585.

United States Court of Appeals, Fourth Circuit

September 13, 2000

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Submitted Aug. 29, 2000.

Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. David A. Faber, District Judge. (CR-98-140).

Brian A. Glasser, Jennifer S. Fahey, Bailey & Glasser, L.L.P., Charleston, WV, for appellant.

Rebecca A. Betts, United States Attorney, L. Anna Crawford, Assistant United States Attorney, Charleston, WV, for appellee.

Before WILKINS and WILLIAMS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

OPINION

PER CURIAM.

Grover L. Dillon, Sr., appeals his conviction and sentence for five counts of mail fraud in violation of 18 U.S.C. § 1341 (1994). Dillon raises three sentencing issues on appeal: (1) whether the district court erred in departing upward from the applicable guideline range pursuant to U.S. Sentencing Guidelines Manual § 5K2.1 (1998), based on its finding that Dillon murdered his stepson; (2) whether the district court erred in imposing a two-level enhancement for a crime involving a vulnerable victim pursuant to USSG§ 3A1.1; and (3) whether the district court erred in imposing a two-level enhancement based on its finding that Dillon's fraudulent conduct involved the reckless risk of serious bodily injury pursuant to USSG § 2F1.1(b)(6). Finding no reversible error, we affirm.

First, if a defendant's criminal conduct results in death, upward departure is encouraged by the sentencing guidelines if the applicable offense level has not already taken into account the risk of personal injury. See USSG § 5K2.1, p.s. Because the underlying offense of mail fraud does not adequately account for the risk of personal injury, we find that the district court had discretion to depart above the guideline range. Further, our review of the record reveals that the district court had ample evidence to support its factual determination that Dillon murdered his stepson, Bernie Carter. We therefore find that the district court did not err in departing upward from the...

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