                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4495



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


HUNTER CLARK LUPPOLD,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield.  Thomas E. Johnston,
District Judge. (1:06-cr-00221)


Submitted:   November 30, 2007         Decided:     December 21, 2007


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


S. Benjamin Bryant, CAREY, SCOTT & DOUGLAS, PLLC, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, John K. Webb, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Hunter     Clark     Luppold       pled     guilty   to         interstate

transportation of stolen goods valued at more than $5000, in

violation of 18 U.S.C. §§ 2314, 2 (2000).               In sentencing Luppold,

the district court departed upward by two levels pursuant to U.S.

Sentencing Guidelines Manual § 2B1.1, comment. (n.19) (2006), and

imposed a sentence of forty-two months imprisonment.                   On appeal,

Luppold   argues    that   he   was   not     given   notice    of    the    court’s

intention to depart on certain grounds, contests the court’s

decision to depart and the extent of the departure, and also

contends that the court clearly erred in finding that he had an

aggravated role in the offense.         See USSG § 3B1.1(c).               We affirm.

           Between June 2005 and February 2006, Luppold, with the

aid of Joshua Shutt and Joshua Honaker, broke into at least twenty

remote switch boxes in West Virginia owned by Frontier Corporation

(a   subsidiary      of    Citizens         Communications)          and     Verizon

Communications.      They stole more than 1200 telecommunications

computer cards and circuit boards and sold at least 189 of them to

a company in Florida.       The cost of repairs resulted in a loss to

Frontier and Verizon totaling more than $400,000. The offense also

resulted in repeated loss of telephone and cellular phone service

in areas of West Virginia and Virginia.               At the time, Luppold was

nineteen years old and a student at Concord University. Initially,

Luppold and Shutt committed the thefts together.                After Shutt was


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killed in a car accident in October 2005, Luppold asked Honaker if

he wanted to earn money by driving for him.                  Honaker accepted the

invitation.      He lived with Luppold and was generally aware of what

Luppold and Shutt had been doing.                   Thereafter, Honaker drove

Luppold to various remote switch boxes and waited in the car while

Luppold    broke    into   the     boxes.          Honaker    did    not   otherwise

participate in the thefts except once, when he helped Luppold make

a key out of an Allen wrench so he could open the boxes more

easily.    Luppold paid Honaker $1000 the first time he drove and

undetermined amounts thereafter.

            In     the   presentence       report,     the     probation        officer

recommended a base offense level of 6 under USSG § 2B1.1, with a

14-level    enhancement      for     a     loss     over     $400,000,     see     USSG

§ 2B1.1(b)(1)(4), and a 2-level adjustment for being an organizer,

leader, manager, and supervisor of Honaker, see USSG § 3B1.1(c).

With a 3-level adjustment for acceptance of responsibility, USSG

§ 3E1.1, the recommended offense level was 19.                       Luppold was in

criminal history category I.         His advisory guideline range was 30-

37   months.       The   probation       officer    suggested       that   an    upward

departure might be warranted under Application Note 19 to § 2B1.1,

which states that an upward departure may be appropriate when the

offense level “substantially understates the seriousness of the

offense,” principally because of non-monetary harm caused by the




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offense. The probation officer offered the following in support of

this recommendation:

     [T]he thefts of communication cards disrupted 911 centers
     for hours, disrupted cellular and residential telephone
     calls for hours, potentially impacted national security
     circuits, and caused additional economic and non-economic
     harm to Verizon and Frontier beyond the amount of
     restitution in the plea agreement. The probation officer
     notes Luppold’s conduct was not limited to a single
     incident of vandalism and theft, but [was] rather a long,
     ongoing series of incidents which had a wide ranging,
     serious impact and required numerous hours to correct.

          At   sentencing,   the    district   court   determined,   over

Luppold’s objection, that the aggravated role adjustment applied

because (1) Luppold was the only decision-maker during the time

Honaker was involved; (2) Honaker’s participation was very limited;

and (3) Luppold recruited Honaker into the scheme. The court found

that the record was not clear enough about how much money either

Luppold or Honaker obtained, or the manner in which the money was

divided, to rely on Luppold’s having kept most of the money as a

factor supporting the role adjustment.         However, the court found

that Luppold exercised control and authority over Honaker, who

would not have been able to commit the offense alone.

          Luppold’s attorney noted that the probation officer had

recommended a departure and argued against a departure, but did not

address any of the grounds put forward in the presentence report.

After finding that Luppold had received notice of a possible

departure as required by Fed. R. Crim. P. 32(h), the court departed

upward by two levels.

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            First, the court found that Luppold’s primary objective

of the offense was non-monetary.          See Application Note 19(A)(I).

The court based this finding on Honaker’s statement to the state

police that Luppold committed the thefts for the thrill of it.

Second, the court found that the offense risked substantial non-

monetary harm, see Application Note 19(A)(ii), because the theft of

the communications cards disrupted at least one 911 call center, as

well as other means of communication in two different states, for

hours at a time, thus causing a risk to public health and safety.

The court also found that the offense created a substantial loss to

Frontier and Verizon that went beyond the expense of repairing the

damage, due to disruption of both businesses, delay in expansion

projects,    and   damage     to   the   companies’    reputations.    See

Application Note 19(A)(iv).         Last, the court noted a factor not

set out in Application Note 19, that the offense had exposed the

vulnerability      of   the   country’s     critical    telecommunications

infrastructure.

            The court also made the following findings under 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2007):           that the nature and

circumstances of the offense were substantially more serious than

were reflected by the applicable guideline, see § 3553(a)(1),

(a)(2)(A); that an upward departure would provide a more just

punishment for the offense and promote respect for the law, see

§ 3553(a)(2)(A); that a departure would serve to deter future


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thefts, see § 3553(a)(2)(B); and that a departure would serve the

policy set out in § 3553(a)(6), to avoid unwarranted disparity in

sentencing, by treating more seriously a defendant who causes more

than monetary harm.

          On appeal, Luppold first challenges the role adjustment.

A two-level adjustment may be made under § 3B1.1(c) when the

defendant is an organizer, leader, manager, or supervisor in a

criminal activity involving fewer than five participants.        The

district court’s determination that the defendant was a leader or

organizer in the offense is a factual issue that is reviewed for

clear error.   United States v. Sayles, 296 F.3d 219, 224 (4th Cir.

2002).

          Luppold contends that the district court clearly erred in

making the adjustment because there was no evidence that Luppold

controlled Honaker; rather, Honaker voluntarily agreed to help

Luppold with the thefts when he was invited to do so.   Luppold also

argues that the district court mistakenly conflated the concepts of

organization and management with the management and control of

another person, and equated greater guilt on Luppold’s part with

control over the less-guilty Honaker.   We disagree.    The district

court did not clearly err in finding that Luppold recruited Honaker

as an accomplice, planned and organized the offense both before and

after Honaker entered it, and exercised some degree of control over




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Honaker’s activities while he was a participant.                We conclude that

these findings warranted the two-level role adjustment.

             Next, Luppold contests the upward departure.                        Under

United States v. Booker, 543 U.S. 220 (2005), a sentence is

reviewed for reasonableness.          United States v. Moreland, 437 F.3d

424,   432   (4th   Cir.),    cert.    denied,   126     S.    Ct.     2054    (2006).

Initially, Luppold contends that he first learned of the district

court’s intention to depart upward at the sentencing hearing and

that, for this reason alone, resentencing is required.                     Rule 32(h)

of the Federal Rules of Criminal Procedure requires the sentencing

court to give the parties reasonable notice when it is considering

a departure on a ground not identified as a possible basis for

departure     either    in   the   presentence       report    or    in    a   party’s

prehearing     submission.         After   Booker,    the     notice      requirement

remains in effect and applies both to departures and variances.

United States v. Davenport, 445 F.3d 366, 371 (4th Cir. 2006).

       However, the plain error standard of review applies when the

defendant has not raised the notice issue in the district court.

United States v. McClung, 483 F.3d 273, 276 (4th Cir. 2007),

petition for cert. filed, ___ U.S.L.W. ___ (U.S. July 12, 2007)

(No. 07-5347).         Because Luppold did not object to the lack of

notice, his claim of error must be reviewed for plain error.                       Id.

at 276.      The notice requirement is satisfied if the presentence

report recommends a departure on a particular ground.                           United


                                      - 7 -
States v. Bellamy, 264 F.3d 448, 455 (4th Cir. 2001).                Luppold

claims that he was not given notice that the court was considering

a departure based on the allegation that he committed the offense

for the thrill of it or because he exposed the vulnerability of the

telecommunications infrastructure.          However, he was on notice that

the court would consider whether non-monetary harms warranted a

departure under Application Note 19, and that the list of factors

potentially supporting a departure in Note 19 was not exhaustive,

giving     the   court   the    opportunity    to    identify    non-monetary

motivations and harms particular to his offense that might warrant

a departure.       Luppold thus received adequate notice.

            Luppold also argues that the court departed on improper

grounds.     When reviewing either a departure or a variance, the

appeals    court    considers    “whether   the     sentencing   court   acted

reasonably both with respect to its decision to impose such a

sentence and with respect to the extent of the divergence from the

sentencing range.” United States v. Hernandez-Villanueva, 473 F.3d

118, 123 (4th Cir. 2007).       If the sentencing court determines that

a sentence within the guideline range will not serve the purposes

of § 3553(a), the “court should first look to whether a departure

is appropriate based on the Guidelines Manual or relevant case

law.”     Moreland, 437 F.3d at 432.        “If an appropriate basis for

departure exists, the court may depart.”            Id.




                                    - 8 -
          Luppold claims that the court’s finding that he exposed

the   vulnerability     of   the    country’s   telecommunications

infrastructure was not supported by any evidence and, to the extent

that such vulnerability exists, it was already known to many people

who work in that industry.     Thus, he could not have exposed an

already known fact.   However, the relative ease with which Luppold

and his accomplices committed the offense and the wide-spread harm

that resulted amply support the court’s finding.

          Last, Luppold contests the extent of the departure.    He

asserts that the two-level departure increased his sentence as much

as it would have increased under § 2B1.1(b)(1) if the offense had

caused almost twice the monetary harm that it did.   He claims that

the departure is thus in conflict with USSG § 5K2.5, p.s. (Property

Damage or Loss), which encourages a departure for property damage

or loss not already accounted for in the applicable guideline.

Under § 5K2.5, the degree of departure “should depend on the extent

to which the harm was intended or knowingly risked,” and also

should be governed by “the extent to which the harm to property is

more serious than other harm caused or risked” by the offense.

However, property damage and loss are monetary concerns.        The

principal focus of Application Note 19 to § 2B1.1, and of the

district court in its decision to depart, was non-monetary harm

caused by Luppold’s offense.       We conclude that the two-level




                               - 9 -
departure was not excessive and that the resulting sentence was

reasonable.

           We therefore affirm the sentence imposed by the district

court.   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 the decisional process.



                                                           AFFIRMED




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