Lawrence E. Lupien v. Harold W. Clarke

1The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1330
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Jeffrey D. Sayre, *
*
Appellant. *
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Submitted: October 29, 2004
Filed: March 9, 2005
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Before BYE, BEAM and GRUENDER, Circuit Judges.
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BEAM, Circuit Judge.
Jeffrey Sayre appeals the sentence imposed by the district court 1 following his
plea of guilty to a charge of interference with commerce by means of extortion under
color of official right. We affirm.

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I. BACKGROUND
Sayre, a former Missouri state court judge, pleaded guilty to extortion after
accepting a $10,000 bribe from a criminal defendant. A second count, charging him
with conspiracy to obstruct justice by killing a witness, was dismissed pursuant to
the plea agreement. Sayre admitted that he conspired to kill the criminal defendant
after he learned that the defendant was cooperating with authorities concerning the
bribe Sayre received, but Sayre claimed that he "came to [his] senses and decided not
to act out on [his] words." The district court assessed a two-level obstruction-of-
justice enhancement for the murder conspiracy and departed upward an additional
four offense levels based on the seriousness of Sayre's obstructive conduct. The court
sentenced him to forty-eight months' imprisonment and three years' supervised
release. Sayre agreed to the two-level enhancement for obstruction of justice. He
challenged the additional four-level departure the district court imposed as a result
of the same conduct and renews that challenge on appeal. Sayre did not challenge the
constitutionality or mandatory nature of the guidelines before the district court.
II. DISCUSSION
We decide this case in light of the new guidelines regime articulated in United
States v. Booker, 125 S. Ct. 738 (2005). The district court imposed Sayre's sentence
under a guidelines framework that was, at the time, mandatory. However, the
Supreme Court has now instructed that the federal sentencing guidelines are merely
advisory. Id. at 757. As modified, the Act "requires a sentencing court to consider
Guidelines ranges . . . but it permits the court to tailor the sentence in light of other
statutory concerns as well." Id. Thus, the district court erroneously sentenced Sayre
under a mandatory system.

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2 While some circuit panels are resolving pending Booker issues by
automatically remanding those cases to the district court, see, e.g., United States v.
Crosby, 397 F.3d 103 (2d Cir. 2005), such a system seems to fly in the face of the
very burden placed on defendants under United States v. Olano, 507 U.S. 725 (1993).
Olano makes clear that even though the court engages in a specific analysis of the
district court record to determine whether an error was prejudicial, the defendant (or
the government depending on whether a timely objection was made) bears the burden
of persuasion with respect to prejudice. Id. at 734.
3Here, we have no Sixth Amendment violation because Sayre admitted all facts
reviewed by the district court in imposing the sentence.
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We note that in Booker, Justice Breyer contemplates the varied circumstances
in which cases currently pending present themselves on appeal and recognizes that
even in light of Booker, not every appeal will lead to a new sentencing hearing. Id.
at 769. That is because
reviewing courts [will] apply ordinary prudential doctrines, determining,
for example, whether the issue was raised below and whether it fails the
"plain-error" test. It is also because, in cases not involving a Sixth
Amendment violation, whether resentencing is warranted or whether it
will instead be sufficient to review a sentence for reasonableness may
depend upon application of the harmless-error doctrine.
Id.
Post-Booker, there is considerable discussion about the proper appellate
standard of review in cases involving the district court's application of the sentencing
guidelines.2 Some question whether, in cases not involving a Sixth Amendment
violation,3 there must be an objection to the mandatory nature of the guidelines in
order to preserve that error on appeal, or whether a general objection to the sentence
imposed under the guidelines is sufficient to preserve a Booker error as well.

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In Sayre's case we need not answer these questions nor mark new territory.
Whether we review the district court's imposition of sentence for harmless error or
plain error, the result is the same for Sayre. If Sayre failed to preserve the error, we
would review for plain error. And if Sayre did preserve the error, the error would be
subject to harmless-error review. Under either review, the ultimate inquiry requires
a determination as to whether the error affected substantial rights, which in most
cases means whether the error was prejudicial or affected the outcome of the district
court proceedings. United States v. Olano, 507 U.S. 725, 734 (1993).
Our review affirms the fact that while the district court followed a sentencing
scheme that is no longer mandatory, doing so did not affect Sayre's ultimate sentence
in this case. Clearly, the district court wanted to fully account for Sayre's behavior
and have that conduct reflected in Sayre's ultimate sentence:
I am going somewhat over the Government's recommendation, and you
have a right to appeal if discretion is badly exercised. In a goal that I set
for myself I won't use a five-year sentence, but I will use a four-year
sentence. That translates into a four-point enhancement beyond the two
provided in the guidelines. It is hard to say just why I am taking a year
off the sentence that I was thinking of as a maximum. The situation has
caused an unusual sacrifice of status for you and your family and that is
a consideration. You have suffered significant punishment, as the letters
to me say, and I think you are quite capable of learning and you will not
be planning any more murders. I am satisfied that the seriousness of the
offense requires that at least a four-year sentence be imposed.
Thus, there is no question that the district court clearly imposed the sentence
it felt appropriate on these facts. A remand in this case is futile. Therefore, we affirm
the district court's imposition of forty-eight months of incarceration, a sentence which
reasonably reflects the seriousness of the conduct at issue.

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III. CONCLUSION
For the reasons stated herein, we affirm.
GRUENDER, Circuit Judge, concurring in the judgment.
I concur in the judgment of the Court because I agree that Sayre’s sentence
should be affirmed. I write separately, however, because I believe that Sayre’s
challenge to the constitutionality of the sentencing guidelines deserves only plain-
error review.
The district court found that Sayre’s conduct in planning to murder a witness
was an aggravating circumstance present to a degree not adequately taken into
consideration by the Sentencing Commission and imposed a 4-level upward departure
under U.S.S.G. § 5K2.0. That upward departure raised Sayre’s sentencing range from
to 27-33 months to 41-51 months, and the district court sentenced Sayre to 48
months’ imprisonment. Sayre objected only to the upward departure during
proceedings before the district court.
As a preliminary matter, I conclude that the district court did not commit error
in departing upward and imposing a 48-month sentence. Section 5K2.0 allows the
district court to depart upward if it determines that the circumstances that form the
basis for the departure were of a kind or present to a degree not adequately taken into
consideration by the Sentencing Commission in determining the applicable guideline
range. See United States v. Bolden, 368 F.3d 1032, 1035-36 (8th Cir. 2004). In this
case, the district court properly concluded that Sayre’s conduct involved aggravating
circumstances present to a degree not adequately taken into consideration in
formulating the guideline ranges for extortion and obstruction of justice. See
U.S.S.G. §§ 2C1.1 and 3C1.1. Sayre was a sitting state trial judge who accepted
bribes in exchange for favorable rulings for a criminal defendant appearing before

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him. Sayre then conspired to kill the person who bribed him when Sayre learned that
person was cooperating with law enforcement regarding Sayre’s acceptance of the
brides. Under these facts, the district court correctly held that Sayre’s conduct
involved aggravating circumstances not normally present in cases of extortion and
obstruction of justice. For these reasons, the district court’s upward departure was
proper under Section 5K2.0.
While appealing the district court’s upward departure under the guidelines,
Sayre sought leave to file a supplemental brief regarding Blakely v. Washington, 124
S. Ct. 2531 (2004), arguing that the federal sentencing guidelines may be
unconstitutional. I agree with the opinion of the Court that this motion was sufficient
to bring the constitutionality of mandatory guidelines to our attention. I also agree
that despite constitutional error under United States v. Booker, 125 S. Ct. 738 (2005),
Sayre’s sentence should be affirmed.
As the Court’s opinion notes, Sayre cannot argue that the district court violated
his Sixth Amendment rights because all of the facts the district court relied upon in
determining Sayre’s sentence were either admitted or deemed to be admitted when
Sayre did not object to their inclusion in the Presentence Investigation Report
(“PSR”). See Booker, 125 S. Ct. at 756; United States v. Cramer, No. 04-1129, 2005
U.S. App. LEXIS 1707, at *13 (citing United States v. Bougie, 279 F.3d 648, 650 (8th
Cir. 2002)).
Because the district court did not violate Sayre’s Sixth Amendment rights, he
could only argue that the court erred in sentencing him under the belief that the
sentencing guidelines were mandatory. See Booker, 125 S. Ct. at 769. Although the
opinion of the Court refers to “[s]ome question” about the requirements to preserve
Booker error in cases without a Sixth Amendment violation, it is well established that
contemporaneous objections stating the grounds upon which relief is sought are
required to preserve an issue for appellate review. United States v. Quam, 367 F.3d

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4In United States v. Fox, 396 F.3d 1018, 1027 (8th Cir. 2005), and United
States v. Selwyn, No. 04-2164, 2005 U.S. App. LEXIS 3122, at *5-*6 (8th Cir. Feb.
23, 2005), this Court briefly considered whether an objection to drug quantities was
sufficient to preserve Sixth Amendment violations under Booker. This case does not
involve a Sixth Amendment violation, and this Court has not addressed what
objection would be sufficient to preserve Booker error without a Sixth Amendment
violation.
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1006, 1007-08 (8th Cir. 2004); Fed R. Crim. P. 51(b) (“A party may preserve a claim
of error by informing the court – when the court ruling or order is made or sought –
of . . . the party’s objection to the court’s action and the grounds for that objection.”).4
Applying our “ordinary prudential doctrines” regarding appellate review, I would
hold that a defendant must object to either the constitutionality of the guidelines or
their mandatory application in order to preserve Booker error. See Booker, 125 S. Ct.
at 769 (“[W]e expect reviewing courts to apply ordinary prudential doctrines,
determining, for example, whether the issue was raised below and whether it fails the
‘plain-error’ test.”).
In this case, Sayre objected only to the upward departure during proceedings
before the district court. At no time during sentencing or any other proceeding before
the district court did he object to the constitutionality of the guidelines or their
mandatory application. Because I believe Sayre failed to preserve this issue, I would
review for plain error only. See United States v. Olano, 507 U.S. 725, 734 (1993);
United States v. Franklin, No. 04-1937, 2005 U.S. App. LEXIS 1878, at *6 (8th Cir.
Feb. 7, 2005). By applying a plain error standard to the analysis contained in the
Court’s opinion, I reach the same conclusion, that Sayre’s sentence should be
affirmed, because I agree that by departing upward, the district court effectively
treated the guidelines as advisory and that, as a result, re-sentencing would be futile.
Finally, following Justice Breyer’s remedial majority in Booker, Sayre’s sentence

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reflects a reasonable application of the factors listed in 18 U.S.C. § 3553(a). Booker,
125 S. Ct. at 765-66.
For the above reasons, I concur in the judgment of the Court.
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