                                                             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opinion should not be published and is not precedent except under the limited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
