                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4536


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL F. HARRIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:12-cr-00170-HEH-1)


Submitted:   April 18, 2014                 Decided:   June 27, 2014


Before SHEDD, KEENAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David B. Hargett, HARGETT LAW, PLC, Glen Allen, Virginia, for
Appellant.    Dana J. Boente, Acting United States Attorney,
Alexandria, Virginia, Michael R. Gill, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Michael Harris (“Appellant”) was charged in an eight-

count indictment with securities fraud, wire fraud, and mail

fraud arising out of a fraudulent investment scheme.                             After a

jury   trial,    Appellant    was       convicted     of     three    counts     of   wire

fraud and one count of mail fraud and was sentenced to 108

months’     imprisonment.          On    appeal,      Appellant       challenges       the

sufficiency of the evidence at trial as well as the district

court’s calculation of his Sentencing Guidelines range.                          We have

reviewed the record and find no reversible error.                          Accordingly,

we affirm.

                                          I.

            On   October     15,    2012,      a    grand    jury     in   the   Eastern

District of Virginia returned an eight-count indictment charging

Appellant with several crimes in connection with an investment

fraud scheme.      According to the indictment, Appellant solicited

investor funds by representing to investors that the funds would

be   used   to   conduct     human      trials      and     develop    patents        on   a

treatment for HIV/AIDS.            Instead of using the money for those

purposes,        the       indictment              alleged       that          Appellant

misappropriated/converted a vast majority of the money for his

personal use and that he concealed his fraud from investors.

The specific charges against Appellant were: securities fraud,

in violation of 15 U.S.C. §§ 77q(a) and 77x (Counts 1-4); wire

                                           2
fraud, in violation of 18 U.S.C. § 1343 (Counts 5-7); and mail

fraud, in violation of 18 U.S.C § 1341 (Count 8).

                                           A.

              Appellant       pled   not   guilty   to   all    charges.      Before

trial, Appellant filed a motion to dismiss Counts 1 and 2 on

statute       of     limitations     grounds,   which     the     district     court

granted.       Appellant proceeded to a jury trial on the remaining

Counts. 1      The following facts are based on the testimony at

trial, which took place between February 25, 2013 and March 4,

2013.

              Appellant       was    the   president,     CEO,     and     principal

shareholder of M.F. Harris Research (“MFH”), a company that was

allegedly          involved    in    researching     a    cure    for      HIV/AIDS.

According to the evidence presented at trial, Appellant claimed

that MFH was developing a treatment for HIV/AIDS that involved

using     a    hyperbaric       chamber    to   introduce       nitrogen     into   a

patient’s cells, which would combat the HIV/AIDS virus.

              Between 2005 and 2011, Appellant solicited investments

by selling shares of MFH stock for $1.00 a share.                   In soliciting

these investments, Appellant made a number of presentations in

which he told potential investors that their money would be used

     1
       As explained below, Counts 3 and 4 were dismissed post-
trial for lack of venue.    Therefore, this section focuses only
on the facts relating to Counts 5 through 8.



                                           3
by MFH to obtain the necessary patents, begin human trials of

the hyperbaric chamber treatment, and continue research.                    From

October 2005 through July 2011, Appellant received approximately

$900,000.00 in investments.           Of that amount, no money was used

for HIV/AIDS research, and only $54,787.24 was used to pay for

patent   fees.      The   Government        presented   evidence     that    the

remaining investor funds were spent by Appellant on personal

expenses,    including      mortgage        payments,   vehicles,      a     gun

collection, farm and horse expenses, 2 child support, and other

personal purchases.

                                       1.

                                Count Five

            The trial evidence relating to the wire fraud charge

in Count 5 was based on the circumstances surrounding a single

investment   of   $200,000.00    by     Dr.   T.M. 3    In   2006,   Dr.    T.M.

discovered   that   he    and   his    former   partner,     M.B.,   were    HIV

positive.    At the end of August 2006, Dr. T.M. was joined by

M.B. and S.B., a friend who was also HIV positive, on a trip



     2
       Appellant was involved in competitive steeplechase horse
racing, and the evidence at trial revealed that he spent
investor funds on horse boarding and other farm-related
expenses.   In addition, Appellant met several MFH investors at
horse shows.
     3
       To protect the confidentiality of several victims in this
case, we refer to them by their initials.



                                       4
from    California      to   Virginia      to    meet    with     Appellant.       Over

several     days,     the    three   men        discussed      with   Appellant     his

research of HIV treatment using hyperbaric chambers.                         At trial,

witnesses testified that Appellant represented to Dr. T.M. that

if he invested in MFH, his investment dollars would go toward

HIV research and that Dr. T.M., M.B., and S.B. would be the

first patients to receive the treatment.

             Dr. T.M. agreed to invest $200,000.00 in MFH.                          The

Government presented evidence that between October 3, 2006 and

February 7, 2007, almost all of Dr. T.M.’s investment was used

by Appellant for his personal expenses, including $107,974.74 to

purchase and maintain a home.                  Only $6,000.00 was used to pay

patent expenses and none of the money went to HIV research.

                On October 31, 2006, Dr. T.M. died of causes unrelated

to HIV.     Dr. T.M.’s brother, John M., served as executor of Dr.

T.M.’s estate and tried to obtain information from Appellant

about     his    brother’s    $200,000.00           investment.       John    M.   sent

letters to Appellant requesting information about MFH’s future

plans and asking for Dr. T.M.’s stock certificates.                      After these

letters went unanswered, John M. attempted to contact other MFH

investors       and   made   complaints        to    several    state   and    federal

agencies.

             On March 12, 2008, Appellant sent John M. an email in

which Appellant alleged that John M. was falsely impersonating

                                           5
an investor of MFH and that if he continued to do so, he would

“be contacted by authorities with a restraining order.”                        J.A.

1001. 4      John M. responded, explaining that he was acting on Dr.

T.M.’s behalf and that he needed the stock certificates for the

$200,000.00 investment.               John M. also wanted to know how the

investment money was being spent.                   Appellant replied to this

email, telling John M. that MFH shares are non-transferable.

Appellant       still     did     not    provide    the    requested    financial

information to John H.

                                             2.

                                        Count Six

               With respect to the wire fraud charge in Count 6, the

Government introduced evidence that in 2008, Appellant went to

the home of David Evans to present Mr. Evans and his wife with

an    opportunity    to     invest      in   MFH.   Mr.    Evans   testified   that

Appellant told him and his wife that their investment would be

used to obtain patent approval and to finish clinical trials of

the HIV/AIDS treatment that MFH was developing.                      According to

Mr.        Evans,   there       was     no    discussion    during     Appellant’s

presentation regarding Appellant using investment money to pay

his own salary or to pay for any personal expenses.                     At trial,


       4
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                             6
Mr. Evans testified, “[i]f I thought he was going to use my

money for salary, I wouldn’t have given him any of my money.”

J.A. 53.

             After   the   presentation,             Mr.     Evans   decided    he   would

invest   $5,000.00,    and        on   August        4,    2008,   Appellant    sent    Mr.

Evans an email welcoming him to the project and providing him

with wire transfer information.                  As Appellant’s counsel pointed

out at trial, the August 4, 2008 email also attached several

documents,    including       a    request       for        government   funding       that

referenced     an    annual       salary        of        $100,000.00,   plus    another

$22,400.00 in annual benefits, for the CEO of MFH.

           On August, 15, 2008, Mr. Evans followed Appellant’s

instructions and wired $5,000.00 to the MFH bank account.                              Just

before Mr. Evans’s investment arrived in MFH’s bank account, the

account’s balance was $40.87.               By August 21, 2008, the account

was overdrawn.       The Government’s evidence at trial demonstrated

that Appellant used Mr. Evans’s investment to pay for a number

of personal expenses.

                                           3.

                                       Count Seven

           Count 7 was a wire fraud charge based on an investment

from Diane Desch in 2011.              Ms. Desch testified that she went to

Appellant’s home in early 2011 and Appellant presented her with

information regarding MFH and its research.                           With respect to

                                            7
MFH’s progress in developing a cure for HIV/AIDS, Appellant told

Ms. Desch that “he was very close.                 He finished Stage I.              He was

in Stage II, and all he had to do was go to Stage III.”                                   J.A.

97.     Then, on June 13, 2011, Appellant called Ms. Desch and told

her that he needed $2,500.00 by noon to pay patent fees in

Europe or MFH was “dead in the water.”                    Id. at 100.          Later that

day, Ms. Desch went to the bank and sent $2,500.00 to Appellant

via wire transfer.          Financial analysis presented at trial showed

that    only    $2,100.00     of     this    money       was    used    to     pay     patent

expenses and the remainder was used by Appellant for personal

expenses.

               Shortly     thereafter,       Appellant         asked     Ms.    Desch       to

invest additional money into MFH, telling her that she could

receive a block of shares at $5,000.00 per block.                                Appellant

told Ms. Desch that she could purchase shares of MFH for $1.00

per share but that those shares would eventually be worth $22.00

or    $23.00     per     share.      On     June    28,       2011,    Ms.     Desch      wire

transferred $7,500.00 to MFH to secure two full bocks of shares.

This wire transfer formed the basis for the wire fraud charge in

Count    7.      Appellant        never   told     Ms.    Desch       that   any     of   her

investment would be used for Appellant’s personal expenses.                                Ms.

Desch testified that she understood her investment would be used

to research the cure for AIDS and she would not have invested in

MFH    had    she   known    her    money    would       be    used    for     Appellant’s

                                             8
personal    expenses.           Financial      analysis     presented       at        trial

demonstrated that Appellant spent Ms. Desch’s entire $7,500.00

investment on personal expenses.

                                          4.

                                   Count Eight

            Count    8,     the   mail     fraud   charge,       was    based     on     a

November    2010    mailing       sent    by    Appellant     to     MFH    investors

notifying them of a November 20, 2010 shareholder meeting in

McLean, Virginia.          Nicole Gentry, an investor who had invested

$5,000.00 in MFH in 2005, testified at trial that she received

the notification of the shareholder meeting in the United States

mail.      Several investors attended the meeting, including Ms.

Gentry,    Mr.    Evans,    and   Rusty     Carrier.       Mr.   Carrier      made      an

audio-recording of the meeting, which was played for the jury.

            At     the     meeting,       Appellant       made      a      number       of

representations about the financial and business status of MFH,

including    the    following:       patent      expenses     were      costing         MFH

approximately $9,000.00 per quarter; MFH was the owner of the

patent; Appellant was actively working on financial reports to

show investors how MFH dollars were being spent; and Appellant

had won money through steeplechase horse racing and used the

winnings    to    fund   MFH.     The     Government      presented     evidence        at

trial   which     contradicted      Appellant’s        representations           to    the

investors    at    the     shareholder      meeting.        In     particular,         the

                                           9
Government         presented        the     following         evidence:      Appellant         spent

only $6,972.42 for patent fees in 2010 and patent expenditures

for    the     entire         period       between       2005      and    2011    totaled        only

$54,787.24;         Appellant         --     not       MFH    --    owned    the       patent     and

Appellant transferred ownership of the patent to MFH just weeks

before trial; Appellant had never provided investors with any of

the     promised        financial          information          concerning        MFH;     and     an

analysis of Appellant’s horse income and expenses revealed a net

loss rather than a gain.                    Appellant also told investors at the

shareholder          meeting        that     MFH        needed      more    money        and     that

Appellant         was    concerned         that    a     rival     company       was   developing

similar science as MFH.

                                                   B.

               At       the    close        of     the       Government’s        case-in-chief,

Appellant moved for a judgment of acquittal pursuant to Federal

Rule of Criminal Procedure 29, challenging the sufficiency of

the evidence.              The district court denied Appellant’s motion.

Appellant renewed his Rule 29 motion for judgment of acquittal

at    the    conclusion        of     the    trial       evidence,       which     the    district

court also denied.

               The case was presented to the jury, and on March 4,

2013,       the     jury      found    Appellant          guilty     of     securities         fraud

(Counts 3-4), wire fraud (Counts 5-7), and mail fraud (Count 8).

With respect to Counts 3 and 4, Appellant filed a post-trial

                                                   10
motion for judgment of acquittal, arguing that the Government

failed    to    establish         venue.        The       district           court      granted      the

motion.

                                                C.

               Appellant        proceeded       to    sentencing              on    the       remaining

counts of conviction (Counts 5-8) on July 10, 2013.                                             At the

sentencing      hearing,         the    district      court            calculated           Appellant’s

total offense level at 29 with a criminal history category of I,

which     yielded          an   advisory        range         under       the      United        States

Sentencing          Guidelines         (“U.S.S.G.”)               of    87    to        108     months’

imprisonment.            Included in the total offense level calculation

was a two-level increase because a victim of the offense was a

vulnerable          victim,      see       U.S.S.G.       §       3A1.1,      and       a     two-level

increase    for       Appellant’s          abuse     of       a    position        of       trust,   see

U.S.S.G.    §       3B1.3.        The      district       court        overruled            Appellant’s

objections          to     each       of     these        offense-level              enhancements.

Thereafter,          the     district        court    imposed            a    within-Guidelines

sentence of 108 months’ imprisonment on Counts 5 through 8, all

to be served concurrently.                    The district court also imposed a

three-year period of supervised release for each Count, also to

run concurrently.

               On     July      12,     2013,      Appellant            timely       appealed        his

convictions and sentence.                   Appellant challenges his convictions

on   sufficiency           of   evidence      grounds         and,       in   the       alternative,

                                                11
challenges          the      district          court’s        Sentencing       Guidelines

calculation, arguing that he should not have been subject to the

vulnerable victim or abuse of a position of trust enhancements.

We possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a).

                                               II.

                                                A.

              Appellant contends that the evidence was insufficient

to support his convictions for wire fraud and mail fraud.                          It is

well settled that “[a] defendant challenging the sufficiency of

the evidence faces a heavy burden.”                        United States v. Foster,

507 F.3d 233, 245 (4th Cir. 2007).                      We review such challenges de

novo.      United States v. Kelly, 510 F.3d 433, 440 (4th Cir.

2007).       In so doing,           “we view the evidence on appeal in the

light most favorable to the government in determining whether

any rational trier of fact could find the essential elements of

the crime beyond a reasonable doubt.”                         United States v. Cone,

714   F.3d    197,     212       (4th   Cir.    2013)     (citing     United   States    v.

Collins, 412 F.3d 515, 519 (4th Cir. 2005)).                           We do not weigh

the evidence or review the credibility of the trial witnesses,

and   we     assume       that    the    jury    resolved      all    discrepancies     in

testimony in favor of the government.                      See id.      “We will uphold

the jury’s verdict if substantial evidence supports it and will

reverse      only     in    those       rare    cases    of   clear    failure    by    the

                                                12
prosecution.”            Id.    As we have explained, “substantial evidence”

is    that    which      “a    reasonable      finder      of   fact     could   accept    as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.”                         United States v. Moye, 454

F.3d    390,       394   (4th       Cir.   2006)    (en    banc)   (internal      quotation

marks omitted).

                                               B.

               Appellant was convicted of wire fraud and mail fraud.

“Sections 1341 and 1343 of Title 18 punish anyone who, ‘having

devised       or    intending         to   devise    any     scheme      or   artifice    to

defraud, or for obtaining money or property by means of false or

fraudulent         pretenses,        representations,        or    promises,’     uses    the

mails or electronic wires ‘for the purpose of executing such

scheme or artifice.’”                 United States v. Wynn, 684 F.3d 473, 477

(4th Cir. 2012) (quoting 18 U.S.C. §§ 1341, 1343).                               Therefore,

the offenses of mail fraud and wire fraud require the Government

to    prove    beyond      a    reasonable      doubt      that    the   defendant:      “(1)

devised or intended to devise a scheme to defraud and (2) used

the mail or wire communications in furtherance of the scheme.”

Id.     Proof of a “scheme to defraud” requires proof of “the

specific intent to deprive one of something of value through a

misrepresentation              or    other    similar       dishonest      method,    which

indeed would cause him harm.”                 Id. at 478.



                                               13
             When      viewed          in     the    light       most        favorable         to    the

Government,       we    are     satisfied            that    substantial            evidence        was

presented at trial for a rational jury to conclude beyond a

reasonable doubt that Appellant committed the offenses of wire

fraud and mail fraud.

                                                    1.

             We    begin       with         the     Count   5     wire       fraud       conviction.

Appellant argues there was insufficient evidence to support this

conviction because the March 12, 2008 email from Appellant to

John M. did not communicate any false information.                                   As Appellant

notes,    the     email      did       not    provide       John       M.    with        any   of   the

requested financial information and simply stated that shares of

MFH   were      non-transferable,                  which    was     consistent             with     the

shareholder        subscription              agreement          that        Dr.     T.M.       signed.

Therefore,        according        to        Appellant,          this        email        could     not

constitute wire fraud because the email did not communicate a

falsehood.

             Appellant’s argument misses the point, as it seems to

contend     that       the    wire          communication         at        issue    must        itself

establish       all     of     the          essential       elements          of     wire        fraud.

However,     18       U.S.C.       §        1343     requires      only           that     the      wire

communication be used in furtherance of the scheme to defraud.

See Wynn, 684 F.3d at 477.                    Thus, the existence of the scheme to



                                                    14
defraud, as well as Appellant’s specific intent to defraud, can

be established through other evidence.

              Throughout      the     trial,           the    Government       presented

overwhelming evidence of Appellant intentionally depriving MFH

investors      of   investment      funds    through         misrepresentations       and

deceit.        This   evidence      included       Appellant’s      solicitation      of

funds from Dr. T.M. through assurances that the money would be

used for HIV research and that Dr. T.M., M.B., and S.B. would be

the first patients to receive the treatment.                      Yet, despite these

promises, Dr. T.M.’s $200,000.00 investment was largely spent by

Appellant on personal expenses.                  Appellant’s intent to defraud

MFH investors was established well before he sent the March 12,

2008 email to John M.

              The Government’s theory with respect the specific wire

communication referenced in Count 5 was that it was used in

furtherance of Appellant’s scheme to defraud because it was sent

for    the    purpose    of   concealing         the    fraud    from   John    M.,   the

executor of Dr. T.M.’s estate.               It is of no consequence whether

the information communicated in Appellant’s email to John M. was

consistent with the shareholder subscription agreement that Dr.

T.M. had signed.          The jury was entitled to consider the email

communication in the context of all the evidence and conclude

that    the    email’s    purpose     was    to        further   Appellant’s      fraud.

Accordingly, there was substantial evidence from which the jury

                                            15
could conclude that Appellant was guilty beyond a reasonable

doubt of wire fraud, as charged in Count 5.

                                            2.

           Turning next to Counts 6, 7, and 8, Appellant argues

that    there     was       insufficient         evidence      to     support     these

convictions because the Government did not establish a specific

intent to defraud.            Specific intent is required to convict an

individual of wire fraud or mail fraud.                   Wynn, 684 F.3d at 478.

This   means,    “a    defendant         must   specifically     intend   to    lie   or

cheat or misrepresent with the design of depriving the victim of

something of value.”               Id.     A defendant’s specific intent to

defraud may be inferred from the totality of the circumstances.

United States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001).

With this standard in mind, we turn to the evidence presented to

support the specific intent to defraud in Counts 6, 7, and 8.

                                            a.

           Counts       6    and    7     can    be   analyzed      together    because

Appellant raises virtually the same argument for each -- namely,

that any evidence of misrepresentations or an intent to defraud

was    negated    by        documentation        received    by      investors     that

referenced an annual salary of $100,000.00 for the CEO of MFH.

According to Appellant, Mr. Evans, the investor referenced in

Count 6, “knew or should have known . . . that most if not all

of the investment would go toward [Appellant’s] salary, negating

                                            16
any intent to defraud.”           See Appellant’s Br. at 19.                 Similarly,

Appellant notes that Ms. Desch, the investor referenced in Count

7,   “did   not    specifically        deny      that    the     paperwork    contained

information about a salary.”             Id. at 20.            Essentially, Appellant

claims that he was entitled to draw a salary and, as a result,

he did not defraud investors because they should have known that

their money would be used by Appellant to pay for his personal

expenses.

            In     contrast,     the   Government        presented        evidence    that

Appellant     assured      investors,         time       and     again,     that     their

investment       dollars   would       be        used    for     obtaining     patents,

conducting research, or conducting clinical trials.                            Both Mr.

Evans and Ms. Desch testified that they would not have invested

in MFH if Appellant had told them that he was going to use their

investments to pay for personal expenses.                      Yet, within a week of

receiving Mr. Evans’s $5,000.00 investment, Appellant spent that

money on farm and horse expenses, housing costs, and bank fees.

Likewise, in less than a month after having received Ms. Desch’s

$7,500.00     investment,      Appellant          also    spent      those    funds     on

personal expenses.

             The    jury   was     entitled        to     consider     the    dichotomy

between Appellant’s promises to Mr. Evans and Ms. Desch on the

one hand, and his subsequent use of their investment funds on

the other hand, to conclude that Appellant specifically intended

                                            17
to “misrepresent with the design of depriving [Mr. Evans and Ms.

Desch] of something of value.”                   See Wynn, 684 F.3d at 478.

Moreover, the jury was entitled to reject -- and apparently did

reject -- Appellant’s contention that the documents referencing

a    salary    somehow     negated   his   specific    intent     to    defraud    Mr.

Evans    and    Ms.      Desch.      Accordingly,      there      was     substantial

evidence from which the jury could conclude that Appellant was

guilty beyond a reasonable doubt of wire fraud, as charged in

Counts 6 and 7.

                                           b.

              Finally, Appellant challenges the sufficiency of the

evidence with respect to his mail fraud conviction in Count 8.

Appellant argues that the Government failed to prove that the

November      2010    mailing     sent     by   Appellant    to     MFH    investors

notifying them of a November 20, 2010 shareholder meeting was

sent with the intent to defraud the investors.                 We disagree.

              The evidence at trial demonstrated that Ms. Gentry, an

MFH investor, received the notice of the shareholder meeting in

the United States mail and subsequently attended the meeting.

At the meeting, Appellant made a number of representations about

the financial status of MFH and about how investment funds were

being used.          The Government presented evidence at trial that

contradicted these representations.                The jury was thus entitled

to    consider       the    Government’s        evidence    and    conclude       that

                                           18
Appellant’s        representations         at    the     shareholder       meeting     were

false.        Further,        the   jury    was        entitled     to    conclude      that

Appellant held the shareholder meeting, and sent the mailing

that formed the basis for Count 8, with the intent to lull MFH

investors into believing that their funds were being used for

legitimate         business    purposes         when    in   fact    they       were   not.

Accordingly, there was substantial evidence from which the jury

could conclude that Appellant was guilty beyond a reasonable

doubt of mail fraud, as charged in Count 8.

                                           III.

                                            A.

              As    an   alternative        to    his     sufficiency          of   evidence

arguments, Appellant challenges the district court’s calculation

of his Sentencing Guidelines range.                      We review a sentence for

reasonableness, applying an abuse of discretion standard.                              Gall

v.   United    States,        552   U.S.    38,    51    (2007).         In     considering

whether   a        district     court      properly       applied        the    Sentencing

Guidelines, “we review the court’s factual findings for clear

error and its legal conclusions de novo.”                            United States v.

Osborne, 514 F.3d 377, 387 (4th Cir. 2008) (internal quotation

marks omitted).          Clear error exists “only if, on the entire

evidence, we are left with the definite and firm conviction that

a mistake has been committed.”                    United States v. Manigan, 592



                                            19
F.3d   621,     631       (4th    Cir.    2010)       (internal      quotation      marks     and

alterations omitted).

                                                 B.

                                                 1.

               Appellant challenges the two-level enhancement to his

Sentencing Guidelines range resulting from the district court’s

conclusion that Dr. T.M. qualified as a “vulnerable victim.”

Pursuant       to    U.S.S.G.      §     3A1.1(b)(1),       a   defendant’s         Guidelines

range increases by two levels “[i]f the defendant knew or should

have   known         that   a     victim    of     the     offense     was     a    vulnerable

victim.”       The commentary to the Guidelines defines a vulnerable

victim    as    a     person      “(A)    who    is    a   victim     of     the   offense     of

conviction          and     any    conduct        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.”           U.S.S.G. § 3A1.1 cmt. n.2.                  For the enhancement to

apply,    the       district      court     must      determine       that    a    victim     was

“unusually vulnerable” and “assess whether the defendant knew or

should have known of such unusual vulnerability.”                              United States

v. Llamas, 599 F.3d 381, 388 (4th Cir. 2010).

               Appellant contends that Dr. T.M. cannot be considered

an   unusually        vulnerable         victim       simply    by    virtue       of   his   HIV

status.     Appellant makes the following arguments in an attempt

                                                 20
to support his contention: the fraud for which Appellant was

convicted   involved        an   investment    opportunity,    not   the   actual

treatment   of      HIV/AIDS;     the   science   supporting   the   investment

opportunity was not challenged by the Government at trial; Dr.

T.M. was a physician at the time of his investment; Dr. T.M. was

not under any disability or impairment due to his HIV status;

there is no record of Dr. T.M. himself raising any concerns

regarding     how     his    investment       funds   were   being   used;   and

Appellant did not specifically target Dr. T.M. because of his

HIV status.      We are unpersuaded by these arguments.

            During     Appellant’s      sentencing     hearing,   the   district

court made detailed findings before concluding that a vulnerable

victim enhancement was warranted in this case:

     The defendant argues that the investor, Dr. [T.M.],
     was not unusually vulnerable.         He was a board
     certified anesthesiologist.   They contend that he was
     not   suffering   from   any   active   disability   or
     impairment.   However, the evidence was clear that he
     was HIV positive and seeking a cure for his condition.

     The testimony of his brother, who probably knew him
     better than any other witness in the case, indicated
     that his brother was very anxious for a cure, and saw
     the concept offered by [Appellant], Mr. Harris, as a
     possible avenue toward either relieving him of the
     symptoms or curing his disease.        And it was in
     reliance upon that that Dr. [T.M.] invested $200,000.

     But also the evidence at trial and today indicated
     that Dr. [T.M] had clear expectations that he would be
     afforded an opportunity to participate in some of the
     research, and some of the human trials supposedly
     being conducted by [Appellant], and that he was
     anxious to do so. However, there was no research ever

                                         21
        conducted in this case, and there was no money
        invested whatsoever in human trials for research.

        The Court finds that Dr. [T.M] was an unusually
        vulnerable victim, seeking treatment and cure for his
        medical   condition,  which   was  exploited   when  he
        invested the $200,000 to Mr. Harris based upon false
        representations, and therefore all the requirements
        for the 2-level enhancement are satisfied under 3A1.1.

J.A. 1205-06.          Appellant has not offered any argument that the

district court’s factual findings were clearly erroneous.                              In

this case, Dr. T.M. had been recently diagnosed with HIV and was

actively seeking a cure.             His $200,000.00 investment in MFH was

based, at least in part, on Appellant’s promise that Dr. T.M.

would    be    among    the    first    patients         to   participate     in   human

trials.       The promise of these human trials as a possible cure

for   Dr.     T.M.’s    HIV   made     him    “particularly       susceptible,”       see

U.S.S.G. § 3A1.1 cmt. n.2, to Appellant’s fraud.                           Accordingly,

the   district     court      did    not     err   in    applying      this   two-level

enhancement to Appellant’s Sentencing Guidelines range.

                                             2.

              Appellant also argues that the district court erred by

applying a      two-level      enhancement         for    abuse   of   a   position    of

trust by Appellant.           Pursuant to U.S.S.G. § 3B1.3, a defendant’s

Guidelines range increases by two levels “[i]f the defendant

abused a position of public or private trust, or used a special

skill, in a manner that significantly facilitated the commission



                                             22
or   concealment     of    the     offense.”         The     commentary        to   the

Guidelines further defines “public or private trust” as follows:

     a position of public or private trust characterized by
     professional    or   managerial    discretion    (i.e.,
     substantial discretionary judgment that is ordinarily
     given considerable deference).   Persons holding such
     positions ordinarily are subject to significantly less
     supervision than employees whose responsibilities are
     primarily non-discretionary in nature.        For this
     adjustment to apply, the position of public or private
     trust must have contributed in some significant way to
     facilitating the commission or concealment of the
     offense (e.g., by making the detection of the offense
     or the defendant's responsibility for the offense more
     difficult).

U.S.S.G. § 3B1.3 cmt. n.1.

           As we have explained, “[w]hether a defendant held a

position of trust must be approached from the perspective of the

victim.”   United States v. Bollin, 264 F.3d 391, 415 (4th Cir.

2001) (internal quotation marks omitted).                  Moreover, “[i]n every

case of fraud, the defendant will have created confidence and

trust in the victim.             But fraud alone does not justify the

enhancement.”      Id.    Therefore, this enhancement will apply where

“the victim’s trust is based on the defendant’s position in the

transaction”    rather      than        “where   trust      is     created     by   the

defendant’s     personality        or     the    victim’s        credulity.”        Id.

(internal quotation marks omitted).

           Here,    the    district        court   explained        the   basis     for

applying the abuse of a position of trust enhancement:



                                          23
       Enhancement under 3B1.3 applies where the defendant
       has broad discretion to act on behalf of the victim,
       and the victim believes the defendant will act in the
       victim’s best interest.    In this case, [Appellant],
       based   upon   his  purported   experience,   training,
       convinced scores of investors to entrust money to him
       for research and development of an unproven theory for
       treating HIV and AIDS. He maintained complete control
       over the management decisions, marketing, funding,
       investment of funds, and bank accounts. He exercised
       unbridled    discretion    without    supervision    or
       consultation with others.

       This degree of management autonomy allowed him to
       convert the investors’ funds to his own use and
       benefit without accountability or investor oversight.
       And in addition, he concealed assets from the
       accountant and others, and did not reveal the purpose
       for which it was being used to any of the investors.

J.A.   1206-07.        We   agree   with    the   district   court   that   the

enhancement was warranted here.             Appellant held himself out to

investors as being highly experienced in the field of HIV/AIDS

research.    Through this claimed experience, Appellant created an

impression to investors that he would manage MFH in a way that

was consistent with the best interests for the company and its

investors.        In   entrusting    Appellant     with   their   money,    the

investors provided Appellant with the discretion to use their

investment to advance MFH’s purported goals and its supposed

HIV/AIDS research.          Appellant did not do so, however.        Instead,

he utilized his position as CEO of MFH to conceal his fraud from

investors for years.           Accordingly, the district court did not

err    in   applying    this    two-level     enhancement    to   Appellant’s

Sentencing Guidelines range.

                                       24
                                   IV.

          For     the    reasons   stated,    we    affirm    Appellant’s

convictions     and   sentence.    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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