UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

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Unpublished opinions are not binding precedent in this circuit.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 gambling business, see 18 U.S.C. §§ 1955, 2 (1994), and received a sentence 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 customers 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 subsidized by Davis. At the end of each day that the illegal lottery operated, 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 Kenneth Davis (Wyatt Davis' son). Pace and Kenneth Davis also collected 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 assistance 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 provided 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 participants in the conspiracy.

The sentence is therefore affirmed. 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

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