                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                                                                F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                                  July 19, 2006
                               FOR THE FIFTH CIRCUIT                        Charles R. Fulbruge III
                                                                                    Clerk


                                      No. 05-20513
                                    Summary Calendar




       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                          versus

       ROBERT NICHOLAS ANGLETON,

                                                   Defendant-Appellant.



                    Appeal from the United States District Court for
                             the Southern District of Texas
                              (USDC No. 4:02-CR-269-1)
           _________________________________________________________

Before REAVLEY, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

       Robert Nicholas Angleton appeals his conviction and sentence arguing that the

district court erred in (1) denying his motion to dismiss the indictment based on


       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.

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allegations of unconstitutional prosecutorial vindictiveness, (2) denying his request for a

downward adjustment to his guidelines range based on acceptance of responsibility, and

(3) increasing his guideline range four levels under U.S.S.G. § 3B1.1(a) based on a

finding that he had been an organizer or leader role in his criminal enterprise. We affirm

his conviction and sentence for the following reasons:

       1.     Angleton argues that the timing of the tax indictment, three days after

       arguments on his double jeopardy motion in his murder-for-hire case, coupled with

       the unsealing on the tax indictment and press release shortly after the district

       court’s ruling on that motion, and his subsequent appeal of that decision, proves

       unconstitutional prosecutorial vindictiveness. We disagree.

              The decision to bring a subsequent tax indictment was made, and acted

       upon, prior to the trial in Angleton’s murder-for-hire case, and prior to a ruling on

       his double jeopardy motion in that case. The initial sealing of the indictment and

       the timing of the unsealing does not establish a presumption that the tax indictment

       was a product of prosecutorial vindictiveness. The government originally sealed

       the tax indictment to forestall any argument by the defendant that the tax

       indictment may somehow poison any potential jury panel for the murder-for-hire

       trial. Following the denial of Angleton’s double jeopardy motion in his murder-

       for-hire case, and his subsequent interlocutory appeal of that decision, there was

       no longer an issue with poisoning the jury panel and the government promptly

       unsealed the indictment. Angleton has failed to demonstrate that circumstances

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warranting a presumption of vindictiveness exist in this case. United States v.

Krezdorn, 718 F.2d 1360, 1365 (5th Cir. 1983) (en banc). Since the presumption

of prosecutorial vindictiveness does not apply, Angleton must prove actual

vindictiveness, which he has failed to do. United States v. Johnson, 91 F.3d 695,

698 (5th Cir. 1996).

2.     Angleton also contends that the district court erred in denying him a two-

level reduction for acceptance of responsibility. A district court’s determination as

to whether a defendant has accepted responsibility is afforded great deference on

review. United States v. Sanchez-Ruedas, – F.3d –, 2006 WL 1589638, at *5 (5th

Cir. June 12, 2006). The ruling “should not be disturbed unless it is without

foundation.” Id. (quoting United States v. Roberson, 872 F.2d 597, 610 (5th Cir.

1989)). The defendant has the burden of proving entitlement to a reduction in

offense level for acceptance of responsibility. Id.

       U.S.S.G. § 3E1.1 provides for reduction of the offense level “if the

defendant clearly demonstrates acceptance of responsibility for his offense.”

Angleton resisted the prosecution for almost three years, and absconded. Angleton

did not stipulate as to the amount of tax he evaded and left the government to

estimate the amount from his notes and ledgers. Angleton minimized his operation

in an attempt to reduce his sentence. Because there is some foundation for the

district court’s ruling, we affirm the denial of the reduction.

3.     Angleton next challenges the leader or organizer enhancement. Section

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3.B.1.1(a) directs a sentencing court to increase a defendant’s offense level by four

levels “[i]f the defendant was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive.” To determine

whether a defendant is an organizer/leader, the courts should consider:

       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.

       Angleton created and structured the B&G Enterpises business to avoid

creating records that could end up in the hands of law enforcement. He used other

bookmakers and his partner to bring in gambling clientele. He used phone men

and bookmakers to place and pay off bets, and to create and deliver betting slips

and longsheets to his partner, with whom he maintained daily contact. Angleton

used his business office personnel to maintain records for the required monthly

reporting to the IRS on Form 730 and to destroy the betting slips and audiotapes

after the weekly reports were prepared and any problems resolved. Angleton

structured his business so that records of the bookmaking operation, from which

his actual tax liability could be calculated, were destroyed. The district court did

not clearly err in finding that defendant was an organizer or leader of a criminal

activity that involved five or more participants or was otherwise extensive.


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AFFIRMED.




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