                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                                 2
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.



                                              3
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).



                                               4
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

                                                 5
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.

                                         6
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

                                              7
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

                                            8
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.

                                            9
           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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