UNPUBLISHED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Affirmed in part and dismissed in part by unpublished per curiam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. Walter 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Unpublished opinions are not binding precedent in this circuit.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 responsibility 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 individuals 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 prosecuted. By buying and transporting red foxes into North Carolina illegally, 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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