UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4206

DONALD G. RICHARDS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CR-01-318-A)

Submitted: August 22, 2002

Decided: September 10, 2002

Before WILKINS and MOTZ, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Drewry B. Hutcheson, Jr., MCGINLEY, ELSBERG & HUTCHESON, P.L.C., Alexandria, Virginia, for Appellant. Paul J. McNulty,

United States Attorney, Matthew W. Friedrich, Assistant United

States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Over a period of several years, real estate lawyer Donald G. Richards diverted funds out of his attorney trust account for his own use.

A grand jury indicted Richards on eight counts of mail fraud, in violation of 18 U.S.C. § 1341 (2000). Following a jury trial, Richards was

convicted on seven of the eight counts of mail fraud. The district

court sentenced Richards to thirty-seven months in prison. Richards

appeals, arguing that the district court erred by enhancing his sentencing based on a vulnerable victim and obstruction of justice (perjury).

We affirm. 

Richards first argues that the district court erred by enhancing his

sentence pursuant to U.S. Sentencing Guidelines Manual

§ 3A1.1(b)(1) (2001). This guideline provides for a two-level upward

adjustment if the defendant knew or should have known a victim of

the offense was a vulnerable victim. Richards knew that one of his

clients, John Husch, had been institutionalized for a mental breakdown. Richards misappropriated approximately $138,000 belonging

to Husch. We find that the district court did not clearly err by finding

that Husch was a vulnerable victim and, on that basis, enhancing

Richards’ sentence under USSG § 3A1.1. United States v. Parolin,

239 F.3d 922, 927 n.2 (7th Cir.), cert. denied, 533 U.S. 923 (2001);

United States v. Brawner, 173 F.3d 966, 973 (6th Cir. 1999); United

States v. Cruz, 106 F.3d 1134, 1138-39 (3d Cir. 1997). 

Next, Richards claims that the district court erred in applying a

two-level adjustment for obstruction of justice based on perjured testimony. See USSG § 3C1.1. To establish the obstruction of justice

enhancement based on perjury, the sentencing court must find by a

preponderance of the evidence that the defendant gave false testimony

concerning a material matter, with a willful intent to deceive, rather

than as a result of confusion, mistake, or faulty memory. United

2 UNITED STATES v. RICHARDS
States v. Sun, 278 F.3d 302, 314 (4th Cir. 2002). Although we find

that the district court committed clear error when it concluded that

Richards testified that he obtained permission from a client to make

a partial payment and hence, committed perjury, any error was harmless because the district court properly concluded that Richards perjured himself when he denied converting client funds for personal

use. Therefore, the district court properly applied the two-level

enhancement for obstruction of justice. 

For these reasons, we affirm Richards’ conviction and sentence.

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

UNITED STATES v. RICHARDS 3