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

                                                                            FILED
                                                                          October 8, 2008
                                     No. 07-40914
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

PHILIP MYRON COMPTON

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:07-CR-469-1


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Philip Myron Compton was charged by indictment with aiding and
abetting in the transportation of unlawful aliens for the purpose of commercial
advantage or private financial gain by means of a motor vehicle.                           At
rearraignment, Compton admitted transporting the aliens, but he did not agree
with the part of the Government’s offered factual basis that he had done so for
financial gain. The court accepted the plea after stating that Compton would
argue the “for gain” issue at the time of sentence.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-40914

      Despite the refusal to admit guilt on the financial gain element, the
judgment in the case found that Compton was guilty of transporting
undocumented aliens “for private financial gain,” in violation of 8 U.S.C. §
1324(a)(1)(B)(i) (bringing in/harboring aliens for private financial gain) and 18
U.S.C. § 2 (aiding/abetting). If a financial motive was required for conviction of
Section 1324(a)(1)(B)(i), there never was any admission by the Defendant of that
element. However, the Defendant, the Government, and the district judge were
all willing to let the issue of profit motive be reserved for sentencing.
      At sentencing, the district court questioned Compton in order to determine
whether he was entitled to a three-level reduction for not having a profit motive.
See U.S.S.G. § 2L1.1(b)(1).     The court considered Compton’s explanation,
contrasted it with the presentence report regarding what the immigration agents
were told at the time of arrest by the aliens who were being transported, and
found Compton’s denial of any financial motive not to be credible. Mixed with
the discussion at the sentencing hearing on the profit motive was that refusal
to admit to each element of the offense – which as charged included the profit
motive – could adversely affect Compton’s sentence because he might be found
not to have accepted responsibility for his actions.
      On appeal, Compton argues that the district court committed procedural
error by improperly calculating his guidelines range when it refused to adjust
his sentence based on the offense’s being committed “other than for profit.” See
id. § 2L1.1(b). He claims that he acted for purely humanitarian reasons when
he transported the aliens through a border checkpoint.
      At the outset, we note that the substantive statute of conviction, 18 U.S.C.
§ 1324(a)(1)(A), describes different physical ways in which an individual may
have been criminally involved with transporting and harboring aliens. None of
the subsections of that part of the statute refers either to a profit motive or to a
sentence maximum.       It is only in Section 1324(a)(1)(B) that motives and
sentences are injected. Because Compton never pled guilty to having a financial

                                         2
                                  No. 07-40914

motive, evidence later introduced only at the sentencing hearing and inferences
arising from that evidence could not fill in the missing factual component for the
crime of conviction. We conclude that Compton was actually convicted under a
section that does not require financial gain as an element, Section
1324(a)(1)(B)(ii).   The immediately preceding statutory subsection, which
requires a “purpose of commercial advantage or private financial gain,” was the
one shown on the judgment of conviction. That was error. As we analyze below,
that error does not require reversal but only a correction in the judgment.
      Compton has never raised an objection to being convicted under Section
1324(a)(1)(B)(i). Both below and here, the argument has been that he introduced
sufficient evidence at the sentencing hearing to justify the reduction for not
having a profit motive. The statutory subsection that does not require a profit
motive provides for a five-year statutory maximum. 8 U.S.C. § 1324(a)(1)(B)(ii).
Compton’s sentence was less than that, so there is no concern that, because he
did not admit to a profit motive, the factual issue had to be decided by a jury.
See Apprendi v. New Jersey, 530 U.S. 466 (2000).
      In the Sentencing Guidelines setting of a base offense level for this crime,
profit motive has no relevance. U.S.S.G. § 2L1.1(a). Regardless of financial
gain, Compton’s base offense level was 12. That level, even after adjustments
made due to specific offense characteristics, leads to a sentence well below the
statutory maximum of five years for committing the crime without any motive
of financial gain. Had Compton pled guilty to the element of the substantive
crime of having the motive of financial gain, presumably the effort to get a three-
level decrease for not having such a motive would be all but foreclosed based on
his admissions.      Nonetheless, were a district judge willing to accept a
defendant’s explanation that, despite his plea there never was a profit motive,
that would be a matter for the court’s discretion.
      We interpret what occurred as a plea of guilt to the transportation of
aliens without regard to whether there was a profit motive. In Section 1324,

                                        3
                                  No. 07-40914

“there are two offenses - (1) transporting and (2) transporting for financial gain -
and the former is a lesser included offense of the latter.” United States v.
Williams, 449 F.3d 635, 646 (5th Cir. 2006). Everyone at the plea hearing was
in agreement that the profit motive would be addressed only as a sentencing
issue. The judgment should have reflected that the offense for which guilt was
admitted and found did not include a profit motive.
      When later seeking the sentence reduction, Compton bore the burden to
show the lack of a profit motive. See United States v. Cuellar-Flores, 891 F.2d
92, 93 (5th Cir. 1989). A district court’s determination that the credible evidence
did not support the absence of a desire for financial gain is a factual finding
subject to reversal only if clearly erroneous. Id. The Government was not
required to show that the cash Compton possessed when arrested was from an
illegal source or required to present other facts demonstrating that Compton had
acted for profit. See id. Because the burden on the sentencing issue of not
having a profit motive was Compton’s, the court was not required to accept
Compton’s explanations “made with the purpose of reducing his sentence, about
the circumstances of his crime.” United States v. Buenrostro, 868 F.2d 135, 138
(5th Cir. 1989). We have examined the plea hearing, the evidence introduced,
and the inferences explicitly made by the district judge from that evidence, and
we find no clear error in the fact finding.
      Compton’s other contention, that it was procedural error to deny him a
sentence reduction based on his acceptance of responsibility, also is without
merit. Compton was required to prove his entitlement to any such reduction.
See United States v. Perez, 915 F.2d 947, 950 (5th Cir. 1990). We review a
district court’s finding on acceptance of responsibility “under a standard of
review even more deferential than a pure clearly erroneous standard.” Id.
(internal quotation marks omitted). Just as Compton cannot prevail on the
profit-motivation issue, he cannot succeed in his challenge to the acceptance-of-
responsibility ruling, which is entitled to even greater deference.

                                         4
                                 No. 07-40914

      We AFFIRM the conviction and sentence. For the reasons already stated,
we REMAND to the district court with instructions to correct the judgment to
reflect that Compton only pled guilty to, and was only convicted of, a violation
of 8 U.S.C. § 1324(a)(1)(B)(ii), and that the reference to “for private gain” be
deleted from both counts shown in the judgment.




                                       5
