                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                                No. 00-4615
KENNETH LEE TERRELL,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
     for the Western District of North Carolina, at Charlotte.
    Lyle E. Strom, Senior District Judge, sitting by designation.
                           (CR-98-79)

                      Submitted: February 6, 2001

                        Decided: April 26, 2001

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



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Marshall A. Swann, Charlotte, North Carolina, for Appellant. Mark
T. Calloway, United States Attorney, Kenneth M. Smith, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                     UNITED STATES v. TERRELL
                              OPINION

PER CURIAM:

   Kenneth Lee Terrell appeals his sentence arising out of his convic-
tions on two counts of mailing threatening communications in viola-
tion of 18 U.S.C.A. § 876 (West 2000). He contends that the district
court abused its discretion in departing upward on the sentencing
guidelines offense level from level twelve to level twenty-four. Find-
ing no error, we affirm.

   Terrell’s convictions arise out of two sexually explicit, threatening
letters that Terrell mailed to his minor daughter, Dana Mayfield, and
her mother, Valerie Mayfield, threatening to rape, maim, and murder
them. In addition to the sexually explicit and threatening language in
the letter, Terrell sent his daughter a graphic drawing of himself
inserting a knife into her genital area, while holding the bleeding,
decapitated head of her mother’s boyfriend. One letter also mentioned
past acts of abuse against Valerie and indicated his desire to hire
someone to murder Valerie and Dana.

   The presentence report calculated Terrell’s sentencing guideline
range to be twenty-seven to thirty-three months based on a total
offense level of twelve and a criminal history level of five. The calcu-
lation included an upward adjustment of two levels of the offense
level pursuant to U.S. Sentencing Guidelines Manual § 3A1.1(b)
(2000) because one of the victims was "vulnerable." The report identi-
fied no basis for an upward departure from the sentencing guidelines.
The Government moved for upward departure.

   At the sentencing hearing, Valerie Mayfield testified about the neg-
ative psychological effects of the letters upon Dana, about Terrell sex-
ually assaulting Dana when she was a toddler, and about Terrell’s
physical abuse of herself and her fear of him. Additionally, evidence
at the sentencing hearing revealed that Terrell had mailed sexually
explicit letters to other young girls and women whom he did not
know, which resulted in a court ordering him to refrain from mailing
letters to young girls.
                       UNITED STATES v. TERRELL                        3
   The district court followed the presentence report’s recommenda-
tion of a two-level enhancement of the base offense pursuant to
USSG § 3A1.1(b).* The district court determined that Terrell had
engaged in extreme conduct as defined in USSG § 5K2.8 (2000),
finding Terrell’s conduct unusually heinous, cruel, brutal, and degrad-
ing. Furthermore, the district court found Terrell’s sexually explicit,
threatening letter to the teenage daughter "particularly disturbing."
Finding the sentencing guideline offense level of twelve "totally inad-
equate to represent the offense conduct," the district court granted the
Government’s motion for upward departure, increasing Terrell’s
offense level from twelve to twenty-four.

   Based upon an offense level of twenty-four and a criminal history
of five, the sentencing range was ninety-two to 115 months. The court
sentenced Terrell to a total of 108 months, three years of supervised
release, and a special assessment of $200. Terrell timely appealed,
contending that the district court abused its discretion in the twelve-
level upward departure.

   We review the district court’s decision to depart from the sentenc-
ing guidelines, as well as the extent of the departure, for abuse of dis-
cretion. Koon v. United States, 518 U.S. 81, 96-100 (1996); United
States v. Gary, 18 F.3d 1123, 1127 (4th Cir. 1994). Because extreme
conduct is an encouraged factor for upward departure pursuant to
§ 5K2.8, the district court had the authority to depart if Terrell’s con-
duct was not adequately accounted for in the applicable guideline.
USSG § 5K2.8; see United States v. Rybicki, 96 F.3d 754, 757-58 (4th
Cir. 1996). In determining whether a potential basis for departure was
adequately considered, a sentencing court must focus on whether the
factor is taken into account by the guidelines, policy statements, and
commentary. Koon, 518 U.S. at 92-93; Rybicki, 96 F.3d at 757. The
guidelines and commentary thereto specifically state that extreme
conduct was not taken into consideration in determining the base
offense level for threatening communications and may be considered
for departure. USSG § 2A6.1 (2000); Gary, 18 F.3d at 1128-29. The
court should depart upward if "the defendant’s conduct was unusually

  *Terrell does not appeal the two-level enhancement of the base offense
level.
4                      UNITED STATES v. TERRELL
heinous, cruel, brutal, or degrading to the victim." USSG § 5K2.8; see
Gary, 18 F.3d at 1125.

   We find that the district court did not abuse its discretion in finding
that Terrell’s conduct was extreme, justifying an upward departure of
twelve levels. Accordingly, we affirm Terrell’s sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid in the decisional process.

                                                             AFFIRMED
