Filed: Jan. 03, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4940 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES MORROW COLLINS, JR., Defendant -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 Affirmed by unpublished opinion.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 op
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4940 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES MORROW COLLINS, JR., Defendant -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 Affirmed by unpublished opinion.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 opi..
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UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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
10
