* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 11, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-41562

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PATRICIA JENKINS DURANT,

Defendant-Appellant.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:03-CR-929-1

--------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Patricia Jenkins Durant appeals her jury

conviction and sentence for transporting illegal aliens within the

United States for commercial advantage or private financial gain by

means of a motor vehicle in violation of 8 U.S.C. §

1324(a)(1)(A)(ii), (B)(i). We affirm.

Durant contends that the evidence at trial was insufficient to

sustain the jury’s verdict. Specifically, she argues that the

government did not establish that she knew the illegal aliens were2

in the trailer of her truck or that she was acting for commercial

advantage or private financial gain.

Viewing the evidence in th e light most favorable to the

verdict, the evidence was sufficient to establish that Durant knew

the illegal aliens were in the trailer of her truck and that she

was acting for commercial advantage or private financ ial gain.

Durant was the sole driver and occupant of the truck in the trailer

of which the 20 illegal aliens were discovered. Although the load

of onions Durant was transporting was due in New York in two days,

Durant inexplicably traveled 130 miles sout h to Laredo, Texas,

wasting valuable time and money. Further, the jury could have

reasonably inferred that Durant was referring to the illegal aliens

when she told her co-driver that she was going to make some money

by hauling something up north. The jury could have also reasonably

inferred that Durant was the “old lady” demanding $5,000 to

transport the aliens. Finally, given that two of the illegal

aliens seized fro m Durant’s trailer had agreed to pay between

$1,000 and $1,200 upon their arrival in Houston, Texas, the jury

could have reasonably inferred that Durant would not have been

entrusted with such a valuable cargo if she had not been

knowledgeable and involved in t he alien-smuggling scheme. The

evidence was sufficient to sustain the jury’s verdict. S ee United

States v. Nolasco-Rosas

, 286 F.3d 762, 765 (5th Cir. 2002); United

States v. Pennington , 20 F.3d 593 (5th Cir. 1994).3

For the first time on appeal, Durant contends that the

district court’s jury instructions were insufficient and improper

b ecause the district court failed properly to define the t erm

“reckless disregard.” As Durant did not object to the jury

instructions in the district court, our review is for plain error.

United States v. Harris

, 104 F.3d 1465, 1471-72 (5th Cir. 1997).

Under the plain-error standard, Durant bears the burden of showing

that (1) there is an error, (2) the error is plain, and (3) the

error affects substantial rights. U nited States v. Olano

, 507 U.S.

725, 732 (1993). Even if these conditions are satisfied, we have

the discretion to correct the error only if it “seriously affect[s]

the fairness, integrity or public reputation of judicial

proceedings.” I d. (internal quotation marks and citation omitted).

Error in a jury instruction is plain “only when, considering the

entire charge and evidence presented against the defendant, there

is a likelihood of a grave miscarriage of justice.” U nited States

v. McClatchy

, 249 F.3d 348, 357 (5th Cir. 2001) (citation omitted).

The definition of “rec kless disregard” given to the jury in

the instant case was substantially similar to the d efinition set

forth in the relevant Fifth Circuit Pattern Jury Instruction.

Further, Durant’s theory of defense was that she did not know the

aliens were i n the trailer of her truck, not that she knew the

aliens were present but did not know that they were illegally in

the country. As Durant has failed to establish a likelihood of a4

grave miscarriage of justice, she cannot show plain error. S ee

McClatchy , 249 F.3d at 357.

Finally, Durant contends that the district court violated her

Fifth and Sixth Amendment rights when it enhanced her sentence

based on facts that were neither admitted by her nor found by a

jury beyond a reasonable doubt. As Durant did not object on this

basis in the district court, our review is for plain error. See

United States v. Valenzuela-Quevedo

, 407 F.3d 728, 732 (5th Cir.),

cert. denied , 126 S. Ct. 267 (2005).

The district court erred when it sentenced Durant pursuant to

the mandatory guideline s ystem held unconstitutional in U nited

States v. Booker , 125 S. Ct. 738 (2005). See Valenzuela-Quevedo

,

407 F.3d at 733 (“It is clear after Booker that application of the

Guidelines in their mandatory form co nstitutes error that is

plain.”). Durant has failed, however, to point to any record

evidence that indicates that the same sentence would not have been

imposed had the district court known that the Sentencing Guidelines

were advisory. The record itself gives no indication that the

district court would have reached a different result under an

advisory guidelines system. In fact, the district court sentenced

Durant at the middle of the guidelines range. Given the lack of

evidence indicating that the district court would have reached a

different conclusion, Durant has not demonstrated that her

substantial rights were affected, and, thus, she has failed to5

establish plain error. See United States v. Mares , 402 F.3d 511,

520-22 (5th Cir.), cert. denied , 126 S. Ct. 43 (2005).

Accordingly, Duran’s conviction and sentence are

AFFIRMED.