                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4940


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JAMES MORROW COLLINS, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Cameron McGowan Currie, Senior
District Judge. (3:09-cr-01295-CMC-2)


Argued:   October 30, 2013                 Decided:   January 3, 2014


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.


Affirmed by unpublished opinion.       Judge Gregory      wrote   the
opinion, in which Judge Motz and Judge Davis joined.


ARGUED: Clarence Rauch Wise, Greenwood, South Carolina, for
Appellant.   Nathan S. Williams, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee.     ON BRIEF:
William N. Nettles, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

      In    this      criminal        appeal,       the    defendant,       James     Morrow

Collins,      Jr.,       raises       two      challenges          to     the     procedural

reasonableness of his sentence.                     For the reasons stated below,

we   reject     the    defendant’s          arguments      and     affirm   the     sentence

imposed by the district court.



                                               I.

      On December 1, 2009, Collins and co-defendant Gene Jeffcoat

were named in a five-count indictment charging them with the

following:       conspiracy to violate the Animal Welfare Act and to

engage in an illegal gambling business in violation of 18 U.S.C.

§ 371 (Count One); participation in an unlawful animal fighting

venture    in    violation       of     7   U.S.C.        § 2156    and    18   U.S.C.     § 2

(Counts    Two     and      Three);     and     operating          an   illegal     gambling

business in violation of 18 U.S.C. § 1955 and 18 U.S.C. § 2

(Counts     Four      and    Five). 1        The     indictment         stemmed     from    an

undercover investigation by South Carolina Department of Natural

Resources     (DNR)      officers       into    a    cockfighting         organization      in

Swansea, South Carolina.              SJA 10.        As part of the investigation,

several undercover officers attended and made video recordings


      1
       Fellow participants Nancy Dyal, Sheri Hutto, and Wayne
Hutto were indicted separately on similar charges.



                                               2
of three cockfighting “derbies” held between June 2008 and April

2009.      SJA 11.         The events took place on property owned by

Jeffcoat.       SJA 10.        During the derbies, participants paid a fee

to enter birds into individual cockfighting matches.                            Id.      The

owner whose bird won the most matches during the derby collected

the sum of the entrance fees, less a cut taken by Jeffcoat.                              Id.

Spectators were required to pay an attendance fee at the door,

as well as purchase a membership in the South Carolina Gamefowl

Breeders Association.            Id.

        Collins      and   Jeffcoat,      along    with      the    separately        named

defendants,         operated    in     numerous   capacities        at    the   derbies,

including:        working the door to collect entry fees, serving as

referees,       operating       a      computer   to    match       the    birds      with

opponents, maintaining a “fight board” on which win-loss results

were posted, paying the winners and the referees, and generally

enforcing the rules of the event.                 SJA 10-11.        At the April 2009

derby, DNR Sergeant John Lewis, who was secretly recording the

event, was discovered as an undercover officer.                          SJA 12.      This

ended the active investigation and led to the indictment.                          Id.

        After   a    consolidated        trial,   all   of    the    defendants        were

convicted of all counts.                Following an appeal, Counts Two and

Three were overturned by this Court.                    United States v. Lawson,




                                            3
677 F.3d 629 (4th Cir. 2012). 2          The conspiracy conviction and the

conviction    for     operating    an    illegal      gambling      business       were

affirmed, and the case was remanded for a new trial on the

animal fighting statute charges.               Id. at 656.         In light of the

remand, the court did not address several sentencing challenges

raised by Collins.       Id.

     On    remand,    the   Government        dismissed     the    animal    fighting

charges.     At his resentencing hearing for the remaining illegal

gambling    counts,    Collins    objected       to   the   probation       officer’s

determination that he was subject to a four-point enhancement

under    U.S.S.G.    § 3B1.1(a)    as     an    organizer     or    leader    of   the

gambling    operation.         Collins    also    argued     that    he   should     be

granted a two-point reduction for acceptance of responsibility

under U.S.S.G. § 3E1.1.           The district court rejected both of

Collins’ arguments and sentenced him to twenty-one months in

prison.    Collins now appeals both issues.



                                         II.


     2
       The decision to vacate the animal fighting convictions
concerned an issue of juror misconduct.     Lawson, 677 F.3d at
651. The conviction for Count One, which charged the defendants
both with conspiracy to violate the Animal Welfare Act and with
conspiracy to engage in an illegal gambling business, was upheld
because the Court ruled that the illegal gambling business
convictions in Counts Four and Five independently supported the
conspiracy conviction. Id. at 655.



                                          4
                                         A.

     In reviewing the application of the Sentencing Guidelines,

the district court’s factual findings are examined for clear

error, and issues of law are reviewed de novo.                    United States v.

Blake, 81 F.3d 498, 503 (4th Cir. 1996).

                                         B.

     Collins      first    contends     that     the   evidence     at    trial    was

insufficient      to    satisfy   the    criteria      in   U.S.S.G.      § 3B1.1(a)

necessary for him to be considered an organizer or leader.                         The

guidelines differentiate between an “organizer or leader” of a

criminal activity, which accords a four-point enhancement, and a

“manager    or     supervisor,”       which      results     in    a     three-point

increase.        § 3B1.1(a)-(b).         The     section’s   application         notes

advise    that    the     following     factors    should    be     considered     in

determining whether a defendant is an organizer or leader:

     the exercise of decision making authority, the nature
     of participation in the commission of the offense, the
     recruitment of accomplices, the claimed right to a
     larger share of the fruits of the crime, the degree of
     participation in planning or organizing the offense,
     the nature and scope of the illegal activity, and the
     degree of control and authority exercised over others.

U.S.S.G. § 3B1.1, cmt. n.4.

     In United States v. Llamas, this Court explained that, “in

assessing whether a defendant played an aggravating role in the

offense     of    conviction,     the      key     inquiry    is       whether    the

defendant’s role was that of ‘an organizer or leader of people,’

                                          5
as opposed to that of a manager over the property, assets, or

activities of a criminal organization.”                         599 F.3d 381, 390 (4th

Cir. 2010) (quoting United States v. Cameron, 573 F.3d 179, 185

(4th Cir. 2009)).

     Collins first argues that, during the time period covered

by the indictment, his general involvement in the cockfighting

organization was relatively limited. 3                      He contends that he was

present at no more than half of the derbies between January 2008

and April 2009.             He also asserts that Jeffcoat was the sole

leader    of   the       organization,         establishing        such    rules     as   the

prohibition      of     alcohol,     a    ban       on   side   betting,    and     refusing

entry to out-of-state participants.                       Aside from a few referees

who were paid for their time, Jeffcoat was the only member of

the conspiracy who received any compensation from the operation.

     We disagree with the defendant’s arguments, finding that

the evidence supports the district court’s determination that

Collins    was      a    leader    or     organizer        of    the    operation.        The

testimony      at       trial     showed       that      Collins       supervised    fellow

participants        Sheri    Hutto       and    Nancy     Dyal,    as   well   as    several

referees.      A number of witnesses, including Clay Bradham, Brett

Henderson,       David      Davis,       and    Mike      Rodgers,       provided     strong

     3
       The record reflects that Collins was more heavily involved
in derbies at a different facility in years prior to the period
covered in the indictment.



                                                6
circumstantial      evidence       that     Collins    was      a    leader          of   the

organization.       Each stated that Collins was frequently in the

office using the computer before and during matches, and that he

was largely responsible for handling the money and paying out

winning shares.          Rodgers specifically stated that Jeffcoat and

Collins were in charge of the operation at Swansea, noting that

Collins corrected refereeing errors and was called on to resolve

disputes that arose during matches.              Rodgers also testified that

Collins   was     responsible      for     finding    referees       to       oversee     the

fights.    Additionally, Sgt. Lewis testified that, based on his

observations while undercover, Collins was involved in managing

the    fight    board,    keeping     track     of    electronic          records,        and

occasionally directed an individual named Mike Grooms to fight

birds on his behalf.

       Further,    the    district    court     properly     relied           on   Collins’

conduct   after    Sgt.    Lewis     was    discovered     to       be    a    DNR    agent.

During the incident, Collins was the primary decision maker with

respect to how the group would handle Lewis.                         The court noted

that Collins immediately discussed the situation with Jeffcoat,

and that Collins stated he was considering calling the police to

have   Lewis    arrested    for    trespassing.          Collins         then      escorted

Lewis off the premises, at least in part to ensure that none of

the other participants harmed him.



                                            7
     In   sum,    the       evidence    shows       that    Collins     exhibited

significant authority in running the operation and controlling

derby participants and other members of the organization.                       He

was responsible for making sure the events ran smoothly, and he

exhibited influence over people when important decisions needed

to be made.     Therefore, in the absence of clear error, we affirm

the district court’s application of the four-point enhancement

under § 3B1.1(a).

                                        C.

     Collins’    second      argument        is   that     the    district   court

improperly    failed    to    deduct    two       points    for    acceptance   of

responsibility under U.S.S.G. § 3E1.1.                He contends that he is

entitled to the reduction because his decision to go to trial

was premised on a challenge to the legal conclusion that his

actions   amounted     to    gambling    under      South    Carolina    law,   as

opposed to the factual findings that led to his convictions. 4




     4
       In the initial appeal, the defendants reiterated their two
main legal challenges to the gambling convictions:      that the
district court erred in failing to charge the jury that the
defendants must have known that their conduct constituted
gambling under South Carolina law; and that the court erred in
instructing the jury that the relevant South Carolina gambling
statute is violated when a person pays an entry fee to enter a
contest of skill and the winnings depend on the number of
entries.   Lawson, 677 F.3d at 652.     This Court rejected both
arguments. Id. at 652-54.



                                        8
       As the district court noted, Collins was not automatically

precluded    from       receiving       an         adjustment     for      acceptance     of

responsibility merely because he went to trial:

       Conviction by trial . . . does not automatically
       preclude a defendant from consideration for such a
       reduction. In rare situations a defendant may clearly
       demonstrate an acceptance of responsibility even
       though he exercises his constitutional right to a
       trial. This may occur, for example, where a defendant
       goes to trial to assert and preserve issues that do
       not relate to factual guilt . . . .

U.S.S.G. § 3E1.1(a) cmt. n.2.

       However,     the        evidence        supports    the        district      court’s

conclusion     that       at    trial     Collins        sought       to      minimize   his

involvement in the derbies by contesting several factual bases

for the convictions.              For example, in argument and on cross-

examination, Collins emphasized that Jeffcoat devised the rules

for running the derbies, that Collins did not participate in or

condone side betting, and that he was not paid for his time.                               By

contesting    his     involvement         in    the    derbies    generally,        Collins

denied responsibility for the facts giving rise to the gambling

convictions.

       Collins’ testimony at his sentencing hearing further sought

to downplay his role in the derbies.                       He argued that he was

absent from many of the derbies during the relevant time period,

that   he   did   not     exercise      authority        when    he     was    there,    and,




                                               9
again,     that    he    did    not   receive         any   compensation      for   his

involvement.

     Thus,    while      it    is   certainly     true      that   Collins’    defense

depended in part on legal arguments that his actions did not

constitute gambling, he also consistently refused to acknowledge

that he was an active member of the organization.                          Therefore,

the district court did not clearly err in denying Collins credit

for acceptance of responsibility.                See United States v. Dugger,

485 F.3d 236, 239 (4th Cir. 2007) (“We must give great deference

to the district court’s decision because the sentencing judge is

in a unique position to evaluate a defendant’s acceptance of

responsibility.         The sentencing judge is in the best position to

evaluate     the    defendant’s       acts      and     statements    to    determine

whether the defendant has accepted responsibility for his or her

criminal     conduct.”)        (internal     quotation       marks   and   citations

omitted).



                                        III.

     For the foregoing reasons, we affirm the sentence imposed

by the district court.



                                                                              AFFIRMED




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