                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                       September 27, 2005
                                   TENTH CIRCUIT
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 03-6277
 v.                                                 (D.C. No. 02-CR-29-C)
                                                         (W.D. Okla.)
 E.W. “DUB” JILES,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


      Defendant-Appellant E.W. “Dub” Jiles appeals his sentence imposed

following a plea of guilty to one count of conspiracy to commit money laundering

in violation of 18 U.S.C. § 1956(h). Mr. Jiles asserts that the district court

committed plain error by increasing his sentence under a mandatory sentencing

guidelines system on the basis of judicially determined facts in contravention of

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
United States v. Booker, 125 S. Ct. 738 (2005). Our jurisdiction arises under 28

U.S.C. § 1291, and we affirm.



                                    Background

      The parties are familiar with the facts, and we need not repeat them in

detail here. On February 20, 2002, Mr. Jiles was indicted on numerous counts

involving bribery, money laundering, and other offenses. The indictment alleged

that Mr. Jiles, who operated several nursing homes in Oklahoma, bribed Brent

VanMeter, an official at the Oklahoma State Department of Health. The purpose

was to transfer residents from nursing homes that had been closed to homes that

Mr. Jiles operated and to appoint a management company controlled by Mr. Jiles

as temporary manager of troubled nursing homes. Under the terms of a plea

agreement, Mr. Jiles pleaded guilty to a single count of conspiracy to commit

money laundering in violation of 18 U.S.C. § 1956(h).

      The final presentence report established Mr. Jiles’ base offense level under

the Sentencing Guidelines at 20 and recommended upward adjustments based on

the amount of funds laundered during the conspiracy (U.S.S.G. § 2S1.1), the

vulnerability (U.S.S.G. § 3A1.1(b)(1)) and number (U.S.S.G. § 3A1.1(b)(2)) of

victims, and Mr. Jiles’ role in the scheme (U.S.S.G. § 3B1.1(a)). The presentence

report also indicated that an adjustment for acceptance of responsibility (U.S.S.G.


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§ 3E1.1) was not warranted. The resulting offense level was 31, with a

sentencing range of 108-135 months imprisonment.

      Prior to the sentencing hearing, the district court granted two defense

objections that resulted in a 5 level reduction in the total offense level to 26, with

a sentencing range of 63-78 months. Following a three-day sentencing hearing,

the district court sustained the upward adjustments relating to the vulnerability

and number of victims as well as the adjustment for Mr. Jiles’ role in the offense.

The district court sentenced Mr. Jiles to 63 months imprisonment, the bottom of

the sentencing range.

      Mr. Jiles subsequently appealed his sentence. The government moved for

dismissal on the basis of a waiver of appellate rights found in the plea agreement.

On May 14, 2005, this court granted the government’s motion. Mr. Jiles then

sought certiorari review before the United States Supreme Court, arguing that his

guidelines sentence was unconstitutional under the rule propounded in Blakely v.

Washington, 542 U.S. 296 (2004). The Supreme Court granted certiorari and

remanded the case for reconsideration in light of its decision in United States v.

Booker, 125 S. Ct. 738 (2005). We thereafter denied a motion by the government

to dismiss the case and ordered briefing on the Booker issue to proceed. We now

address Mr. Jiles’ arguments on appeal.




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                                     Discussion

       The sole issue on appeal is whether the district court committed plain error

in enhancing Mr. Jiles’ sentence on the basis of judicially determined facts under

a mandatory sentencing system. In Booker, the Supreme Court held that “[a]ny

fact (other than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” 125 S. Ct. at 756. Under the substantive rule propounded in

Booker, a sentence enhanced under mandatory sentencing guidelines on the basis

of judicially determined facts runs afoul of the Sixth Amendment’s right to jury

trial. Id.

       Because Mr. Jiles did not raise the Booker issue before the district court,

we review for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir. 2005) (en banc). “‘Plain error occurs when there is (1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.’” Id. (quoting

United States v. Burbage, 365 F.3d 1174, 1180 (10th Cir. 2004)). The

government concedes that the first two prongs of plain error review are satisfied

in this case. Aplee. Br. at 31.

       Our inquiry now turns to the third prong of plain error review. As we have


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repeatedly emphasized, the defendant bears the burden under plain error review to

demonstrate that the alleged error in sentencing affects his substantial rights.

Gonzalez-Huerta, 403 F.3d at 736; United States v. Clifton, 406 F.3d 1173, 1181

(10th Cir. 2005). There exist at least two ways to satisfy this burden.

      First, if the defendant shows a reasonable probability that a jury
      applying a reasonable doubt standard would not have found the same
      material facts that a judge found by a preponderance of the evidence,
      then the defendant successfully demonstrates that the error below
      affected his substantial rights. This inquiry requires the appellate
      court to review the evidence submitted at the sentencing hearing and
      the factual basis for any objection the defendant may have made to
      the facts on which the sentence was predicated. Second, a defendant
      may show that the district court’s error affected his substantial rights
      by demonstrating a reasonable probability that, under the specific
      facts of his case as analyzed under the sentencing factors of 18
      U.S.C. § 3553(a), the district court judge would reasonably impose a
      sentence outside the guidelines range. For example, if during
      sentencing the district court expressed its view that the defendant’s
      conduct, based on the record, did not warrant the minimum
      Guidelines sentence, this might well be sufficient to conclude that
      the defendant had shown that the Booker error affected the
      defendant’s substantial rights.

United States v. Dazey, 403 F.3d 1147, 1175 (10th Cir. 2005). In this case, Mr.

Jiles asserts that there exists both a reasonable probability that a jury would not

have found the same material facts under a reasonable doubt standard and that the

district court judge would have imposed a sentence outside the guidelines range

had he not been bound. We address each allegation in turn. 1


      1
       Mr. Jiles also argues that sentencing under the mandatory guidelines
constituted structural error and that Booker error should be presumed prejudicial.

                                         -5-
      Mr. Jiles first asserts that a jury might have reached different conclusions

under a reasonable doubt standard as to the identity of victims of the offense,

their number, and the number of participants in the offense. Beyond such

conclusory assertions, the essence of his argument is that because he

“‘strenuously contested the factual basis for the sentencing enhancements,’” he

has satisfied the third prong of plain error review. Aplt. Br. at 18 (quoting Dazey,

403 F.3d at 1177). This argument is unpersuasive.

      Mr. Jiles argument rests on the incomplete premise that merely contesting

the government’s evidence through cross-examination, objection, and the

introduction of witnesses somehow satisfies the requirement that the defendant

demonstrate a “reasonable probability” that a jury would have reached a different

conclusion under a reasonable doubt standard. A “reasonable probability” exists

where the probability of a different result is “sufficient to undermine the

confidence in the outcome of the proceeding.” United States v. Dominguez

Benitez, 124 S. Ct. 2333, 2340 (2004). Our determination necessarily invokes a

qualitative and quantitative assessment of the evidence in the record. See id. In

this case the evidence overwhelmingly supports the district court’s determination.

      After carefully reviewing the record, we conclude that a reasonable



Mr. Jiles acknowledges, however, that this court rejected these arguments in
Gonzalez-Huerta, 403 F.3d at 734-36. We merely note that Mr. Jiles has
preserved the issues.

                                         -6-
probability of a jury reaching a different conclusion with respect to the sentencing

enhancements does not exist. Testimony by the government’s witnesses and Mr.

Jiles’ own captured conversations presented overwhelming evidence supporting

the enhancements. Though important, the testimony of Mr. Jiles’ witnesses and

defense counsel’s cross examination were simply insufficient to cast serious doubt

on the factual bases underpinning the sentence enhancements. At best, Mr. Jiles’

witnesses presented an incomplete picture of the factual circumstances that was

undermined by the government witnesses’ testimony and the Defendant’s own

statements. Mr. Jiles makes much of the fact that a jury might have chosen to

credit the testimony of Tim Pickert, a long-time friend and employee of Mr. Jiles,

whom the district court described as an “entirely incredible witness.” III Aplt.

App. at 730. However, Mr. Jiles has failed to even allege what difference such a

credibility determination could have made given the limited nature of Mr.

Pickert’s testimony and the overwhelming evidence in contradiction. No

reasonable probability of a different result exists, even with a more demanding

standard of proof.

      We next turn to Mr. Jiles’ assertion that there exists a reasonable

probability that the district judge would impose a sentence outside the guidelines

range. We agree with the government that Mr. Jiles’ assertion is undermined by

the district court’s careful consideration of the relevant facts in relation to the


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sentencing factors in 18 U.S.C. § 3553(a). Although Mr. Jiles was sentenced at

the bottom of the Sentencing Guidelines range, the district court gave no

indication that it viewed the minimum guidelines sentence as excessive. See

Gonzalez-Huerta, 403 F.3d at 734; Dazey, 403 F.3d 1175; United States v.

Shelton, 400 F.3d 1325, 1328, 1332-33 (11th Cir. 2005). Many of the arguments

Mr. Jiles urges here were considered by the district court in denying the

defendant’s motion for downward departure. The district court made clear that

the grounds proffered were insufficient to warrant a downward departure, but that

the “circumstances merit[ed] a sentence at the bottom of the guideline range.” III

Aplt. App. at 738. Continuing, the district court noted that “given the goals of

sentencing, as set out in the statute, . . . the bottom of the range is sufficient in

this case.” Id.

      Post-Booker, district courts are still required to consult the Sentencing

Guidelines in determining sentences, even though they are not bound to sentence

within the guideline range. Gonzalez-Huerta, 403 F.3d at 731. The district

court’s on-record consideration of the sentencing factors and its ultimate sentence

determination lead us to conclude that Mr. Jiles has failed to demonstrate a

reasonable probability that the district court would sentence outside the guideline

range. Satisfying the third prong of plain error review requires more than

reasserting arguments made to the district court or “cherry picking” the record for


                                           -8-
extra-contextual comments. We can glean nothing from the above-quoted

comments that would lead us to conclude that the district court might have

considered sentencing outside the guidelines range.

      Because Mr. Jiles has failed to demonstrate that the district court’s

sentencing error affected his substantial rights, we need not consider the fourth

plain error factor.

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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