United States v. Harker ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4472
ROY LEE HARKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., District Judge.
(CR-94-287)
Submitted: June 19, 1997
Decided: July 7, 1997
Before WILKINS and MICHAEL, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
Bradley J. Cameron, Wilkesboro, North Carolina, for Appellant. Wal-
ter C. Holton, Jr., United States Attorney, Arnold L. Husser, Assistant
United States Attorney, Greensboro, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Roy Lee Harker pled guilty to one count of knowingly receiving,
acquiring, purchasing, and transporting live red foxes in violation of
the Lacey Act, 16 U.S.C.A. § 3372 (West 1985 & Supp. 1997), and
was sentenced to a term of 46 months imprisonment. Harker appeals
his sentence, alleging that the district court clearly erred in finding
that he had not accepted responsibility for his criminal conduct,
USSG § 3E1.1,* and that he was an organizer or leader, USSG
§ 3B1.1. He also contends that the court erred in failing to depart
downward based on his age and physical condition. We affirm in part
and dismiss in part.
For about seven years, Harker bought live red foxes in various
western states and sold them to owners and operators of fox hunting
preserves in North Carolina and other southeastern states. In the
course of his business, Harker advertised his willingness to buy live
red foxes in a trapper's magazine and traveled west several times a
year. Although Harker entered a guilty plea to one of the six counts
charged against him, he denied knowing that his conduct was illegal.
He also received an adjustment for obstruction of justice (which he
did not contest) because he refused to admit or provide information
about the involvement of another person who was also targeted in the
investigation. Conduct which warrants an adjustment for obstruction
of justice normally indicates that a defendant has not accepted respon-
sibility for his offense. USSG § 3E1.1, comment. (n.4). Considering
the facts before the district court, we have no difficulty in finding that
the court properly denied Harker an adjustment for acceptance of
responsibility.
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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We also find that the court did not clearly err in finding that Harker
was a leader or organizer. See United States v. Harriott, 976 F.2d 198,
202 (4th Cir. 1992) (defendant's role in offense is factual question).
Harker argues that he simply made a series of unrelated sales to indi-
viduals who did not know each other. While he did not create or lead
an organization in the usual sense, Harker maintained a network of
people who trapped foxes for him on the one hand and bought foxes
from him on the other hand, many of whom were subsequently prose-
cuted. By buying and transporting red foxes into North Carolina ille-
gally, Harker not only committed a crime but made it possible for
preserve owners to obtain red foxes "the easy way," instead of buying
legal animals. The district court's decision not to depart on the basis
of Harker's age and ill health is not reviewable. See United States v.
Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).
We therefore affirm the sentence imposed. We dismiss that portion
of the appeal which challenges the district court's decision not to
depart. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART
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