United States v. Cordell R. Seagren

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1886
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Cordell Richard Seagren, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 6, 2005
Filed: June 22, 2005
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Before BYE, MELLOY, and COLLOTON, Circuit Judges.
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PER CURIAM.
Cordell Richard Seagren appeals the sentence imposed by the district court1
after he pleaded guilty to a fraud charge. Seagren argues that the district court erred
in denying his requests for a sentencing continuance, an acceptance-of-responsibility
reduction, and a downward departure, and that the court erroneously relied on the
1995 Sentencing Guidelines in finding that two prior sentences were not related for
purposes of his criminal history score. Seagren also argues that denial of a downward
1
The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
departure and acceptance of responsibility credit and the calculation of his criminal
history score violate his rights under Blakely v. Washington, 124 S. Ct. 2531 (2004)
and United States v. Booker, 125 S. Ct. 738 (2005). We affirm.
Upon careful review of the record, we conclude that the district court did not
clearly err in denying Seagren an acceptance-of-responsibility reduction, based on the
court’s findings that Seagren minimized his conduct and attempted to shift blame to
others, that he lied about intending to repay the victims, and that his professed lack
of intent to defraud was inconsistent with his guilty plea. See U.S.S.G. § 3E1.1, cmt.
n.1(a) (1995); United States v. Card, 390 F.3d 592, 594-95 (8th Cir. 2004). We also
conclude that the district court did not plainly err in applying the Guidelines in effect
when the instant offense began, see United States v. Comstock, 154 F.3d 845, 847
(8th Cir. 1998), and that, given the existence of an intervening arrest, the court
correctly determined Seagren’s November 1990 and January 1991 sentences were not
related for criminal history purposes, see U.S.S.G. § 4A1.2, cmt. n.3 (1995). As to
the district court’s denial of Seagren’s request for a continuance, which Seagren
claimed was necessary so he could obtain financial documents showing his 1990 and
1991 sentences were factually related, we find that Seagren failed to show he was
prejudiced by the court’s decision. See United States v. Thurmon, 368 F.3d 848, 851
(8th Cir. 2004) (refusing to address whether district court abused its discretion in
denying defendant’s motion to continue trial because he failed to show resulting
prejudice). Finally, the district court’s decision to deny Seagren a downward
departure was an exercise of discretion that we do not review on appeal, see United
States v. Van Zee, 373 F.3d 869, 870 (8th Cir. 2004).
Turning to Seagren’s claim that there is some type of Booker/Blakely error in
this case, we first note that the defendant made no claim of a Sixth Amendment
violation at the time of sentencing. The defendant first raised this issue in his reply
brief. Assuming the Booker claim can be raised in a reply brief, we deny defendant's
request to be resentenced. Since error was not preserved, this case is analyzed under
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a plain error standard. United States v. Pirani, 406 F.3d 543 (8th Cir. 2005). Based
upon the court's independent review of the sentencing transcript in this case, it is clear
that there is no reasonable likelihood that the defendant would have received a lower
sentence had the district court understood the sentencing guidelines were advisory.
See Pirani 406 F.3d at 551. In fact, the district judge sentenced Mr. Seagren at the
top of the federal sentencing guideline range and indicated that he would have been
inclined to depart upward, but for the fact that he had not given notice of his intent
to depart prior to the sentencing hearing.
Accordingly, we affirm the judgment of the district court.
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