UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4205

DIANNE DURHAM ALL,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Senior District Judge.

(CR-96-55)

Submitted: August 31, 1998

Decided: September 16, 1998

Before ERVIN and MICHAEL, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Dorothy P. Dillon, Rocky Mount, Virginia, for Appellant. Robert P.

Crouch, Jr., United States Attorney, Jennie L.M. Waering, Assistant

United States Attorney, Thomas E. Booth, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Diane Durham All appeals the 36-month sentence she received for

bank fraud, 18 U.S.C. § 1344 (1994). In her first appeal, we remanded

for resentencing because the district court departed without giving

reasonable notice. See United States v. All, No. 96-4883 (4th Cir.

Nov. 18, 1997) (unpublished). On remand, the district court imposed

the same sentence. All contests the district court's upward departure

pursuant to USSG § 5K2.5, p.s. (Property Damage or Loss),* and

USSG § 5K2.8, p.s. (Extreme Conduct). We affirm.

Between 1988 and 1995, while ostensibly assisting her retired parents with their financial affairs, All converted $133,681 of their

money to her own use. This amount represented most of her parents'

life savings. The loss left them with no income except Social Security. All made no objection to her sentence calculation, which included

an adjustment for vulnerable victims. See USSG § 3A1.1. Her guideline range was 15-21 months imprisonment. The district court determined that the two-level vulnerable victim adjustment did not

adequately account for the harm All's offense had caused and

departed upward to a sentence of 36 months imprisonment.

A district court's decision to depart is reviewed for abuse of discretion. Koon v. United States, 518 U.S. 81, 99-100 (1996). A departure

may be based on a factor for which the Sentencing Commission

encourages departure unless the factor is already taken into account

in the applicable guidelines. If the factor is taken into account, a

departure may be affirmed "only if the factor is present to an exceptional degree or in some way makes the case different from the ordinary case where the factor is present." United States v. Brock, 108

F.3d 31, 34 (4th Cir. 1997) (quoting Koon, 518 U.S. at 96). The dis-

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*U.S. Sentencing Guidelines Manual (1997).

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trict court's decision that an encouraged factor has not been adequately taken into account by the applicable guideline is reviewed de

novo. See United States v. Rybkcki, 96 F.3d 754, 757-58 (4th Cir.

1996). The district court's decision that the facts and circumstances

of the case warrant departure and the extent of the departure are

reviewed for abuse of discretion. Id. at 758. Here, while the district

court based its departure on two encouraged factors, All argues that

her conduct was not extreme and that her parents' vulnerability and

the amount of their loss were taken into account in the sentence calculation.

Examples of extreme conduct cited in USSG § 5K2.8 include torture, gratuitous infliction of injury, or prolonging of pain or humiliation. It is the last example which resonates in this case. The district

court found that All had destroyed her parents' life savings and retirement income, leaving them with a bleak future. The court also determined that All had inflicted unusual pain on her parents which

warranted a departure for extreme conduct, and that, because the harm

was not entirely taken into account under the fraud guideline, a departure was justified for the property loss.

Although the district court focused on USSG § 5K2.5 and USSG

§ 5K2.8, the commentary to USSG § 2F1.1 provides additional support for the court's decision to depart. Application Note 10 recognizes

that in some fraud cases the monetary loss does not fully account for

the harmfulness and seriousness of the defendant's conduct. In such

cases, reasonably foreseeable non-monetary harm, psychological

harm, or the knowing endangerment of the solvency of a victim may

be the basis for a departure. See USSG § 2F1.1, comment. (n.10);

United States v. Dobish, 102 F.3d 760, 763 (6th Cir. 1996) (prolonged

nature of crime, psychological injury and threat to victims' solvency

warranted departure). Although the district court did not cite this

commentary, its reasoning was similar. Our review of the record persuades us that the district court did not err in deciding that in this case

the guidelines did not fully account for the harm done. We find further that the district court did not abuse its discretion in deciding to

depart, or in departing to a sentence of thirty-six months.

The sentence is therefore affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented

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in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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