* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40914

Summary Calendar

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. 

United States Court of Appeals

Fifth Circuit

F I L E D

October 8, 2008

Charles R. Fulbruge III

Clerk
No. 07-40914

2

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 ofthat

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 whatthe 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 thatthe 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
No. 07-40914

3

motive, evidence later introduced only at the sentencing hearing and inferences

arising from that evidence could not fill in the missing factual componentfor 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 effortto get a threelevel 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,
No. 07-40914

4

“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-ofresponsibility ruling, which is entitled to even greater deference.
No. 07-40914

5

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.