     Case: 09-40475     Document: 00511025542          Page: 1    Date Filed: 02/11/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 11, 2010
                                     No. 09-40475
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

COREY MUQELL JILES,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 5:09-CR-54-1


Before GARWOOD, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Corey Muqell Jiles appeals the 35-month concurrent sentences imposed
in April 2009 by the district court following his guilty plea conviction on each of
two counts of transporting illegal aliens for profit. Jiles argues that the district
court committed reversible error by adjusting his offense level under U.S.S.G.
§ 2L1.1(b)(6). He argues that the facts of his case are substantially the same as
those in United States v. McKinley, 272 F. App’x 412 (5th Cir. 2008), in which
this court found that the § 2L1.1(b)(6) adjustment was not applicable. The facts

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-40475

of the instant case are virtually indistinguishable from those in McKinley, 272
F. App’x at 414. It is thus arguable that the district court’s application of
§ 2L1.1(b)(6) was error.
      “Not all errors in determining a defendant’s guideline sentence require
reversal.” United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008), cert.
denied, 129 S. Ct. 904 (2009). Where a district court considers the sentencing
ranges that might apply to defendant with and without a disputed enhancement
and otherwise explains its sentence in terms of § 3553, the resulting sentence
does not result from an incorrect application of the Guidelines. United States v.
Ruiz-Arriaga, 565 F.3d 280, 282 (5th Cir.), cert. denied, 130 S. Ct. 227 (2009); see
also United States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008) (an incorrect
application of the Guidelines is reversible error only if the non-Guideline
sentence “resulted” from the error).
      The district court determined that without the reckless endangerment
adjustment, Jiles’s advisory sentencing range would have been 15 to 21 months
of imprisonment. The court stated that
      “[i]n the event that the court is wrong as far as the application of the
      reckless endangerment, nonetheless the court believes that a
      sentence of something more than what the guideline range would be
      . . . without the reckless endangerment, just so that we’re clear here,
      without the reckless endangerment we would be looking at . . .
      fifteen to 21 months. And the court does not think that under the
      circumstances both of offense and the manner in which it was
      committed and of the history that I have here as to your own prior
      criminal history that a sentence in that range would be appropriate.
      The court believes that a sentence of 35 months is an appropriate
      and reasonable sentence in this case, and the court would impose
      that sentence, even if it were wrong about the reckless
      endangerment.”
      Jiles also argues (as he did below, 3 R. 149) that his non-guideline
sentence   is substantively    unreasonable.       We   review    the   substantive
reasonableness of the non-Guideline sentence for abuse of discretion. Gall v.
United States, 128 S.Ct. 586, 597-98 (2007); United States v. Simmons, 568 F.3d

                                         2
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                                No. 09-40475

564, 566 (5th Cir. 2009). We are unable to conclude that the district court
abused its discretion in determining that the 35 month sentence imposed was
reasonable. The district court gave extensive consideration to Giles’ argument
but determined that the record counseled in favor of a sentence at the low end
of the enhanced range. The trial court considered the premeditated nature of
the conduct, the fact that the defendant did not know who he was transporting
into the United States, the defendant’s previous criminal conduct, and the
manner in which the crime was committed. In fact, the district court made a
finding of fact that the defendant transported these aliens in an inhumane
fashion. Contrary to Giles’ argument otherwise, the district court’s statements
on the record were adequate to establish that the alternative non-Guideline
sentence was substantively reasonable and that the court properly considered
and applied the 18 U.S.C. § 3553(a) factors.     Accordingly, the sentence is
AFFIRMED.




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