[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 15329 Non

- Argument Calendar

________________________ D.C. Docket No. 3:13

- cr - 00100

- WKW

- CSC

- 16

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus

EDWARD DUCKWORTH, Defenda nt

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Alabama

________________________ (July 17, 2015) Before WILSON , MARTIN, and ANDERSON , Circuit Judges. PER CURIAM:

Case: 14-15329 Date Filed: 07/17/2015 Page: 1 of 72 Edward Duckworth appeals his 14

- month sente nce, imposed after pleading guilty to one count of conspiracy to sponsor, exhibit, buy, sell, possess, train, or transport a dog for participation in an animal fighting venture, in violation of 18 U.S.C. § 371 and 7 U.S.C. § 2156(b). On appeal, he argues that the district court erred in (1) applying a base offense level of 12 under U.S.S.G. § 2E3.1(a)(1) rather than 10 under U.S.S .G. § 2E3.1(a)(2); and (2) not applying a minor or minimal role reduction under U.S.S.G. § 3B1.2. A fter consideration of the pa rties’ briefs and review of the record , we find that the district court did not err in either decision. Accordingly, we affirm Duckworth’s sentence. 1
I. Duckworth first argues that he should have been assigned a base offense level of 10, under U.S.S.G. §2E3.1(a)(2), instead of the level of 12 that he was assigned, under U.S.S.G. § 2E3.1(a)(1). We review a district court’s factual findings for clear error, and its application of the Guidelines to those facts is reviewed de novo. See United States v. Dim itrovski , 782 F.3d 622, 628 (11th Cir. 2015). “‘The findings of fact of the sentencing court may be based on evidence heard during trial, facts admitted by a defendant ’ s plea of guilty, undisputed statements in the presentence report, or evidence presente d at the sentencing

1 Although Duckworth was released from federal imprisonment on May 1, 2015, he is currently serving his term of supervised release, “which is part of his sentence and involves some restrictions upon his liberty.” Dawson v. Scott , 50 F.3d 884, 886 n.2 (11th Cir. 1995)

. Thus, his appeal is not moot. S ee id.

Case: 14-15329 Date Filed: 07/17/2015 Page: 2 of 73 hearing.’” United States v. Caraballo , 595 F.3d 1214, 1232 (11th Cir. 2010) (quoting United States v. Wilson , 884 F.2d 1355, 1356 (11th Cir. 1989)). “‘Offense’ means the offense of conviction and all relevant conduct under § 1B1.3

. . . unless a different meaning is specified or is otherwise clear from the context.” U.S.S.G. § 1B1.1 c mt. n.1(H). The base offense level is determined on the bases of “all acts and omissions committed, aided, abetted, counseled, commanded, induced, pr ocured, or willfully caused by the defendant,” and, “in the case of a jointly undertaken criminal activity . . . , all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity. ” U.S.S.G. § 1B1.3(a)(1)(A )

– B. Under § 2E3.1(a) (“Gambling Offenses; Animal Fighting Offenses”), the base offense level is: (1) 12, if the offense was (A) engaging in a gambling business; (B) transmission of wagering information; or (C) committed as part of, or to facilitate, a co mmercial gambling operation; or (2) 10, if the offense involved an animal fighting venture

. Id . § 2E3.1(a)(1)

– (2). An “animal fighting venture” is defined as “any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment.” 7 U.S.C. § 2156(g); see U.S.S.G. § 2E3.1 c mt. n.1

. As an initial matter, we find that the district court did not clearly err in determining that Duckworth was involved beyond just the April 7 , 2012 fight in

Case: 14-15329 Date Filed: 07/17/2015 Page: 3 of 74 which he admitted participating. Evidence existed that Duckworth refereed fights, fought dogs in other fights, and trained dogs. In addition, Duckworth was known by other participants as being involved in the dog fighting circuit. Furthermore, the district court did not clearly err in finding that the gambling activities of the other codefendants (the facts of which are not contested here) were reasonably foreseeable to Duckworth. See U.S.S.G. § 1B1.3(a)( 1)(B) (stating that the base offense level in jointly undertaken criminal activity includes “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity”). Accordingly, b ased on these facts, the dist rict court did not err in applying the base level of 12 under § 2E3.1(a)(1). Looking to the plain language of the guideline, the gambling activities of Duckworth’s co

- conspirators fit within “engaging in a gambling business” or “a commercial gambling oper ation.” See U.S.S.G. § 2E3.1(a)(1). Although Duckworth argues that dog fighting is quintessentially economic, the guideline definition of animal fighting is broader and can include fights for sport or entertainment, not just those for wagering. See 7 U.S.C. § 2 156(g); U.S.S.G. § 2E3.1 cmt. n.1

. While Duckworth also argues that the statutory definition of “ gambling business ” as found in 18 U.S.C. 1955(b)(1) should apply, there is no cross

reference in the guideline (unlike for animal fighting) and, therefore, we look to the

Case: 14-15329 Date Filed: 07/17/2015 Page: 4 of 75 plain language of gambling

. See United States v. Cruz , 713 F.3d 600, 607 (11th Cir. 2013) (“When interpreting the Guidelines, a guideline’s meaning is derived first from its plain language and, absent ambiguity, no addi tional inq uiry is necessary.” (internal quotation marks omitted) ) . However, even if we were to apply the § 1955 definition, Duckworth’s offense qualifies

— it was illegal, involved 5 or more people, and grossed far more than $2,000 in a single day. See 18 U.S.C. 195 5(b)(1). Thus, we do not find that the district court erred in assigning Duckworth a base offense level of 12. II. Duckworth next argues that the district court should have applied a minor or minimal role reduction under U.S.S.G. § 3B1.2. A district cour t’s determina tion of a defendant’s role in an offense is a finding of fact that we review for clear error. United States v. Rodriguez De Varon , 175 F.3d 930, 937 (11th Cir. 1999) (en banc). “[ T ]he district court has considerable discretion in making this fact

intensive determination.” United States v. Boyd , 291 F.3d 1274, 1277

– 78 (11th Cir. 2002). Under the Guidelines, a defendant may receive a reduction for having a limited role in the offense. See U.S.S.G. § 3B1.2. The defendant may receive a four

- level reduction if he was a minimal participant, a two

- level reduction if he was a minor participant, or a three

- level reduction if he was somewhere between a

Case: 14-15329 Date Filed: 07/17/2015 Page: 5 of 76 minimal and minor participant. Id . The determination of whether to apply a mitigating role adju stment “is heavily dependent upon the facts of the particular case.” Id . § 3B1.2 cmt. n.3(C)

. “The defendant has the burden of establishing his role in the offense by a preponderance of the evidence.” United States v. Alvarez

Coria , 447 F.3d 1340, 1343 (11th Cir. 2006) (per curiam). Here, the district court did not clearly err in refusing to apply a minor role reduction or a minimal role reduction. Duckworth transported a dog and fought it at a dog fight hosted by one of his codefendants on April 7, 20 12. A nd, a s mentioned above, the district court did not clearly err in finding that Duckworth also fought dogs in other dog fig hts, refereed fights hosted by a codefendant , received money from this codefendant to train dogs, a nd had trained other individu al s ’ dogs

. Duckworth also knew the scope of opera tions and activities of others and was known by others in the dog fighting circuit

. Cf. U .S.S.G. § 3B1.2

c mt. n.4 (noting that minimal participation may be indicated by a defendant’s “lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others”)

. In light of these activities, it was not clearly erroneous to find that Duckworth was not substantially less culpable th an or plainly among the least culpable of the other participants, even excluding those individuals who only attended the dog fights. See De Varon , 175 F.3d at 940 ; see also U.S.S.G. § 3B1.2

Case: 14-15329 Date Filed: 07/17/2015 Page: 6 of 77 cmt. n.3(A) . The fact that he did not plan the fights or take wa gers is not dispositive, because although his role may have been less than some of the other participants , “it is possible that none of them are minor or minimal participants.” See De Varon , 175 F.3d at 944. That is particularly appropriate here, where D uckworth, de spite his potentially lesser culpability tha n some codefendants, still kept 12

– 15 dogs of his own, trained and fought dogs, refereed fights, and was known and discussed by other participants regar ding dog fighting and gambling. Thus, Duckworth has not established his qualification for a minor role reduction by a preponderance of the evidence , and the district court did not err in finding that the reduction did not apply. See Alvarez

- Coria , 447 F.3d at 1343

. Accordingly, we affirm Duckworth’s sentence. AFFIRMED. Case: 14-15329 Date Filed: 07/17/2015 Page: 7 of 7