United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2007
_______________________ Charles R. Fulbruge III
Clerk
No. 06-40264
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY JAMES REED,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 5:05-CR-1288
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
Timothy James Reed appeals his sentence after a guilty-
plea conviction for transporting illegal aliens in the United
States for private financial gain in violation of 18 U.S.C. § 1324.
The district court imposed a non-guidelines sentence of thirty
months after finding that Reed had “stuffed” twenty-three illegal
aliens in the cramped sleeper compartment of his tractor-trailer.
The court calculated Reed’s guideline range between 18-24 months
after deducting two points for acceptance of responsibility.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Reed argues, and the government concedes, that the
district court erred by deducting only two points for Reed’s
acceptance of responsibility. See U.S.S.G. § 1B1.1(a)-(i). Had
the district court correctly deducted three points, Reed’s
guideline range would have been 15-21 months. Reed further
contends that the district court erred by imposing an upward
variance based on factors already considered by the sentencing
guidelines. See United States v. Andrews, 390 F.3d 840, 847 (5th
Cir. 2004). He notes that the guidelines already increased his
base offense level because of the number of aliens involved and for
creating a substantial risk of death or serious bodily injury.
After United States v. Booker, 543 U.S. 220, 125 S.Ct.
738 (2005), this court reviews Reed’s sentence for reasonableness.
United States v. Perrin, 478 F.3d 672, 675-76 (5th Cir. 2007). “A
non-Guideline sentence unreasonably fails to reflect the statutory
sentencing factors where it (1) does not account for a factor that
should have received significant weight, (2) gives significant
weight to an irrelevant or improper factor, or (3) represents a
clear error of judgment in balancing the sentencing factors.” Id.
(quoting United States v. Smith, 440 F.3d 704, 708 (5th Cir.
2006)).
Because Reed failed to object below, we review for plain
error. Under this standard of review, Reed must establish (1) an
error; (2) that is clear and obvious; and (3) that affected his
substantial rights. United States v. Hernandez-Martinez, 485 F.3d
2
270, 273 (5th Cir. 2007) (citing United States v. Olano, 507 U.S.
725, 732-34, 113 S.Ct. 1770, 1776-78 (1993)). “If these conditions
are met, this court can exercise its discretion to notice the
forfeited error only if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
(internal quotation marks omitted).
Reed cannot prove that the error affected his substantial
rights. Expressing its disbelief that Reed was able to fit more
than eight persons in such a small space, the district court stated
at sentencing that the maximum amount of twenty-four months did not
adequately cover Reed’s conduct. See Olano, 507 U.S. at 734, 113
S.Ct. at 1778 (error must affect outcome of the proceeding). The
district court reasonably concluded that stuffing twenty-three
illegal aliens in the sleeper compartment of a tractor trailer
exhibits a kind and degree of conduct not considered by the
guidelines. Reed thus cannot meet his burden to show that the
error affected the outcome of the proceedings or that the district
court would have imposed a sentence lower than thirty months. See
United States v. Dominguez Benitez, 542 U.S. 74, 81-82, 124 S.Ct.
2333, 2339-40 (2004). Even assuming that this error affected
Reed’s substantial rights, the district court’s failure to correct
it does not “affect[] the fairness, integrity, or public
reputation” of the proceeding. Olano, 507 U.S. at 732, 113 S.Ct.
at 1776 (internal quotation marks omitted).
3
AFFIRMED.
4