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The Honorable Mark W. Bennett, Chief Judge, United States District Court

for the Northern District of Iowa.

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* [UNPUBLISHED]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
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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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