UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 99-4585

GROVER L. DILLON, SR.,
Defendant-Appellant.

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

Submitted: August 29, 2000

Decided: September 13, 2000

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Brian A. Glasser, Jennifer S. Fahey, BAILEY & GLASSER, L.L.P.,
Charleston, West Virginia, for Appellant. Rebecca A. Betts, United
States Attorney, L. Anna Crawford, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

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 pursu-
ant 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 involv-
ing 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 guide-
line range. Further, our review of the record reveals that the district
court had ample evidence to support its factual determination that Dil-
lon murdered his stepson, Bernie Carter. We therefore find that the
district court did not err in departing upward from the guideline range.

Additionally, a two-level adjustment in the offense level should be
made if the defendant knew or should have known that a victim of the
offense was "unusually vulnerable due to age, physical or mental con-
dition, or who is otherwise particularly susceptible to the criminal
conduct." USSG § 3A1.1. comment. (n.2). The record supports the
district court's findings that both Maxine Meadows and Karen John-
son had serious substance abuse and health problems, and that Dillon

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was aware of and exploited these problems. Accordingly, we find that
it was reasonable for the district court to conclude that Dillon specifi-
cally chose these women as victims of his insurance fraud scheme due
to their unusual vulnerability, and the district court correctly applied
USSG § 3A1.1 to increase Dillon's offense level by two levels.

Finally, a two-level adjustment in the offense level should be made
if the defendant's fraudulent conduct involved the reckless risk of
serious bodily injury. See USSG § 2F1.1(b)(6). The district court
found that Dillon took out life insurance policies on both Meadows
and Johnson in the expectation that they would die due to their pro-
pensity to abuse drugs and/or alcohol. Further, the district court found
credible the testimony of witnesses who stated that Dillon supplied
Meadows with large amounts of alcohol and that Dillon instructed an
individual to take Meadows across the state line if medical assistance
was necessary because doing so would diminish the likelihood that
her medical records would be detected. The district court also found
that Dillon refused to identify Johnson's prescriptions and assist the
emergency room doctors who tried to save her. Because we find that
the district court's credibility determinations were not clearly errone-
ous, see United States v. Fisher, 58 F.3d 96, 100 (4th Cir. 1995), we
uphold the district court's decision to impose a two-level enhance-
ment for the reckless risk of serious bodily injury pursuant to USSG
§ 2F1.1(b)(6).

We affirm Dillon's conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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