UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4430

DEBORAH R. LEAKE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-97-563)

Submitted: December 22, 1998

Decided: January 15, 1999

Before ERVIN, HAMILTON, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William G. Yarborough, III, ASHMORE & YARBOROUGH, P.A.,
Greenville, South Carolina, for Appellant. J. Rene Josey, United
States Attorney, John M. Barton, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Deborah R. Leake pled guilty to aiding and abetting an illegal gam-
bling business, see 18 U.S.C. §§ 1955, 2 (1994), and received a sen-
tence of 15 months imprisonment. She appeals her sentence,
contending that the district court clearly erred in finding that she was
not a minor participant in the offense. See U.S. Sentencing Guidelines
Manual § 3B1.2(b) (1997). We affirm.

In 1987, Wyatt A. Davis started an illegal lottery business. His cus-
tomers bet on numbers tied to several legal state lotteries, from which
the winning numbers were drawn. Lottery tickets were sold by
employees ("number writers" or "street writers") either from their
vehicles or at various stores and businesses, some of which were sub-
sidized by Davis. At the end of each day that the illegal lottery oper-
ated, other employees collected tickets at three locations and
transported bags of tickets to a "count house," where the proceeds and
tickets were reconciled and counted.

Davis' friend, Throop Lockey, assisted him primarily by cashing
all personal checks received in payment for lottery tickets through his
bank account, permitting his business, Goldline Motors, to be used as
a drop-off location, and providing vehicles to Davis' employees for
use in conducting the gambling operation. Beginning around 1991,
Leake assisted Davis by collecting tickets and proceeds, helping with
the nightly reconciliation, paying Davis' bills, and verifying winning
lottery numbers by watching for them on television each night. On
occasion, Leake stamped checks at Goldline Motors with the business
endorsement stamp and took the checks to the bank.

The probation officer identified Leake as one of several primary
conspirators. The others were Davis, Lockey, Larry Pace, and Ken-
neth Davis (Wyatt Davis' son). Pace and Kenneth Davis also col-
lected tickets and proceeds and brought them to the count house. At
her sentencing, Leake argued that she was a minor participant. As
defined in the guidelines, a minor participant is"any participant who
is less culpable than most other participants but whose role could not
be described as minimal." USSG § 3B1.2(b), comment. (n.3). A mini-

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mal participant is "plainly among the least culpable," id., comment.
(n.1), and has an extremely limited role in the conspiracy. See United
States v. Reavis, 48 F.3d 763, 769 (4th Cir. 1995). The defendant has
the burden of convincing the district court that she is entitled to the
adjustment. See id. The district court's determination is a factual one
and will not be overturned unless it is clearly erroneous. See id. at
770.

Leake's attorney characterized her participation as simply assis-
tance to a friend, stated that she acted only as a courier, pointed out
that she had no part in organizing the operation, and asserted that
Leake received no financial reward from Davis. Unconvinced, the
district court found that Leake had a substantial role in carrying on
the gambling operation. On appeal, Leake argues that, rather than
being a manager, she was on the same level within the organization
as the street writers who sold tickets and the store owners who pro-
vided locations for the sales. However, the evidence before the district
court was that Leake was one of a select few who were trusted with
collecting and transporting tickets and proceeds and conducting the
nightly count. Leake did not refute this information or the information
in the presentence report that she endorsed checks with the Goldline
Motors stamp and deposited them for Davis. Consequently, we find
that she did not show that she was less culpable than most other par-
ticipants in the conspiracy.

The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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