* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### September 27, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

ORDER AND JUDGMENT *

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

Defendant-Appellant E.W. “Dub” Jiles appeals his se ntence imposed following a plea of guilty to one count of conspira cy to commit money laundering in violation of 18 U.S.C. § 1956(h). Mr. Jiles ass erts that the district court committed plain error by increasing his sentence un der a mandatory sentencing guidelines system on the basis of judicially determ ined facts in contravention of- 2 -

United States v. Booker , 125 S. Ct. 738 (2005). Our jurisdiction arises u nder 28 U.S.C. § 1291, and we affirm.

Background The parties are familiar with the facts, and we nee d not repeat them in detail here. On February 20, 2002, Mr. Jiles was i ndicted on numerous counts involving bribery, money laundering, and other offe nses. The indictment alleged that Mr. Jiles, who operated several nursing homes in Oklahoma, bribed Brent VanMeter, an official at the Oklahoma State Departm ent of Health. The purpose was to transfer residents from nursing homes that h ad been closed to homes that Mr. Jiles operated and to appoint a management comp any controlled by Mr. Jiles as temporary manager of troubled nursing homes. Un der the terms of a plea agreement, Mr. Jiles pleaded guilty to a single cou nt 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 upw ard 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 accept ance of responsibility (U.S.S.G.- 3 -

§ 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 courtgranted 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 th ree-day sentencing hearing, the district court sustained the upward adjustments relating to the vulnerability and number of victims as well as the adjustment forMr. 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 rig hts 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 S upreme 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 c ertiorari and remanded the case for reconsideration in light of i ts decision in United States v. Booker , 125 S. Ct. 738 (2005). We thereafter denied a mo tion by the government to dismiss the case and ordered briefing on the Boo kerissue to proceed. We now address Mr. Jiles’ arguments on appeal.- 4 - Discussion The sole issue on appeal is whether the district co urt committed plain error in enhancing Mr. Jiles’ sentence on the basis of ju dicially determined facts under a mandatory sentencing system. In Booker , the Supreme Court held that “[a]ny fact (other than a prior conviction) which is neces sary to support a sentence exceeding the maximum authorized by the facts estab lished by a plea of guilty or a jury verdict must be admitted by the defendant orproved to a jury beyond a reasonable doubt.” 125 S. Ct. at 756. Under the s ubstantive rule propounded in Booker , a sentence enhanced under mandatory sentencing gu idelines on the basis of judicially determined facts runs afoul of the Si xth Amendment’s right to jury trial. Id. Because Mr. Jiles did not raise the Bookerissue before the district court, we review for plain error. United States v. Gonzal ez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005) (en banc). “‘Plain error occurs w hen there is (1) error, (2) that is plain, which (3) affects substantial rights, and wh ich (4) seriously affects the fairness, integrity, or public reputation of judici al proceedings.’” Id. (quoting United States v. Burbage , 365 F.3d 1174, 1180 (10th Cir. 2004)). The government concedes that the first two prongs of pl ain error review are satisfied in this case. Aplee. Br. at 31. Our inquiry now turns to the third prong of plain e rror review. As we have1 Mr. Jiles also argues that sentencing under the man datory guidelines

constituted structural error and that Bookererror should be presumed prejudicial. - 5 - repeatedly emphasized, the defendant bears the burd en under plain error review to demonstrate that the alleged error in sentencing af fects 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 probabil ity that a jury applying a reasonable doubt standard would not have found the same material facts that a judge found by a preponderanc e of the evidence, then the defendant successfully demonstrates that the error below affected his substantial rights. This inquiry requ ires the appellate court to review the evidence submitted at the sente ncing hearing and the factual basis for any objection the defendant m ay have made to the facts on which the sentence was predicated. Se cond, a defendant may show that the district court’s error affected h is substantial rights by demonstrating a reasonable probability that, und er the specific facts of his case as analyzed under the sentencing factors of 18 U.S.C. § 3553(a), the district court judge would re asonably impose a sentence outside the guidelines range. For example , if during sentencing the district court expressed its view th at the defendant’s conduct, based on the record, did not warrant the m inimum Guidelines sentence, this might well be sufficient to conclude that the defendant had shown that the Bookererror affected the defendant’s substantial rights. United States v. Dazey , 403 F.3d 1147, 1175 (10th Cir. 2005). In this ca se, Mr. Jiles asserts that there exists both a reasonable p robability that a jury would not have found the same material facts under a reasonab le 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. 1Mr. Jiles acknowledges, however, that this court re jected these arguments in Gonzalez-Huerta , 403 F.3d at 734-36. We merely note that Mr. Jile s has preserved the issues. - 6 - Mr. Jiles first asserts that a jury might have reac hed 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 s entencing 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 req uirement that the defendant demonstrate a “reasonable probability” that a jury would have reached a different conclusion under a reasonable doubt standard. A “r easonable probability” exists where the probability of a different result is “suf ficient to undermine the confidence in the outcome of the proceeding.” Unit ed States v. Dominguez Benitez , 124 S. Ct. 2333, 2340 (2004). Our determination necessarily invokes a qualitative and quantitative assessment of the evid ence 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- 7 -

probability of a jury reaching a different conclusi on with respect to the sentencing enhancements does not exist. Testimony by the gove rnment’s witnesses and Mr. Jiles’ own captured conversations presented overwhe lming evidence supporting the enhancements. Though important, the testimony of Mr. Jiles’ witnesses and defense counsel’s cross examination were simply ins ufficient to cast serious doubt on the factual bases underpinning the sentence enhancements. At best, Mr. Jiles’ witnesses presented an incomplete picture of the fa ctual 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 fr iend and employee of Mr. Jiles, whom the district court described as an “entirely i ncredible witness.” III Aplt. App. at 730. However, Mr. Jiles has failed to evenallege what difference such a credibility determination could have made given the limited nature of Mr. Pickert’s testimony and the overwhelming evidence i n 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 exi sts 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 r elevant facts in relation to the- 8 -

sentencing factors in 18 U.S.C. § 3553(a). Althoug h Mr. Jiles was sentenced at the bottom of the Sentencing Guidelines range, the district court gave no indication that it viewed the minimum guidelines se ntence 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). M any of the arguments Mr. Jiles urges here were considered by the distric t court in denying the defendant’s motion for downward departure. The dis trict court made clear that the grounds proffered were insufficient to warrant a downward departure, but that the “circumstances merit[ed] a sentence at the bott om 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 bo ttom 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 th ey 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 f actors and its ultimate sentence determination lead us to conclude that Mr. Jiles ha s failed to demonstrate a reasonable probability that the district court woul d sentence outside the guideline range. Satisfying the third prong of plain error r eview requires more than reasserting arguments made to the district court or“cherry picking” the record for- 9 -

extra-contextual comments. We can glean nothing fr om the above-quoted comments that would lead us to conclude that the di strict court might have considered sentencing outside the guidelines range. Because Mr. Jiles has failed to demonstrate that th e district court’s sentencing error affected his substantial rights, w e need not consider the fourth plain error factor.
AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge