## United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 20

- 11 18

___________________________ United States of America Plaintiff - Appellee

v. Lawrence Oakie, also known as LBJ Defendant - Appellant

____________ Appeal from United States District Court

for the District of South Dakota - Pierre

____________ Submitted: November 17 , 202 0 Filed: April 12, 2021 [P ublished]

____________ Before SHEPHERD , STRAS , and KOBES , Circuit Judges.

____________ PER CURIAM

.

Lawrence Oakie received a sentence of 96 months in prison after a jury found him guilty of three counts of abusive sexual contact of a child

. See 18 U.S.C.- 2

- §§ 1153, 2244(a)(5), 2246(3). He challenges the sentence and the district court’s 1 refusal to allow him to counter a prior sexual

- assault allegation. We affirm.

I.

At a weekend gathering, Oakie touched a 10

- year

- old girl , B.J.W. , on her chest, squeezed her “front private spot,” an d rubbed her buttocks after she had gone to bed

. B.J.W.’s older sister , who was in the room at the time , witnessed the abuse

. Both B.J.W. and her sister identified Oakie as the abuser

. At trial, the government introduced evidence of a prior s exual

- assault accusation against Oakie

— one in which he had allegedly molested a 10

- year

- old girl named L.P. She testified that when Oakie was staying with her family several years earlier , he had vaginally penetra ted her while she was asleep

. Although the jury heard testimony from L.P. and her mother about the assault , it never learned that Oakie had been acquitted of the charge

. At the close of evidence, the jury found Oakie guilty of all three counts. At sentencin g, a dispute arose over whether the prior sexual assault was part of “ a pattern of activity involving prohibited sexual conduct. ” U.S.S.G. § 4B1.5(b)(1) (imposing a five

- level enhancement)

. Even though Oakie had been acquitted, the district court found that the prior abuse had taken place and that it was “ somewhat strikingly similar” to what happened here

. After accounting for the enhancement

— which increased the recommended range under the Sentencing Guidelines from 51 to 63 months to 87 to 108 months

— th e court settled on a 96

- month prison sentence.

1 The Honorable Roberto A. Lange , Chief Judge, United States District Court for the District of South Dakota

.- 3

- II.

“ In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation

. . . [for] any matter to which it is relevant .” Fed. R. Evid. 414 (a)

. Despite objecting at trial, Oakie no longer contests the admissibility of th e p rior sexual assault or the testimony describing it

. Rather, he argues that, even if it was admissible, something else was too: the acquittal.
There are at least two problems with Oakie’s argument. See United States v. Vega , 676 F.3d 708, 719 (8th Cir. 2012) (reviewing for an abuse of discretion)

. The first is that the acquittal was irrelevant “because [it] d[id] not prove innocence ” but

“ simply show [ed] that the government did not meet its burden of proving guilt beyond a reasonable doubt. ” Id. at 720 (quotation marks omitted) ; see United States

v . Wells , 347 F.3d 280, 286 (8th Cir. 2003 ). The other is that there was no easy way to admit it without violating the hearsay rule. See Fed. R. Evid. 801; Vega , 676 F.3d at 720; Wells , 347 F.3d at 286. It is, after all, an out

- of

- court statement th at Oakie tried to offer for the truth of the matter asserted. See Fed. R. Evid. 801; Vega , 676 F.3d at 720; Wells , 347 F.3d at 286. It is perhaps unusual to think of a jury as a declarant, but its statement still qualifies as hearsay. See United States v. Viserto , 596 F.2d 531, 537 (2d Cir. 1979) (noting that, although there is a hearsay exception for convictions, there is nothing comparable for acquittals).
As for Oakie’s fallback argument that the acquittal was admissible as impeach ment evidence, it fails too

. Even without admitting the acquittal itself , Oakie was able to question L.P. about how her story had changed and ask her mother about the delay in reporting. Cf. United States v. Kirkie , 261 F.3d 761, 767 (8th Cir. 2001) (holding that an y evidentiary error was harmless when a defendant had an opportunity “ to challenge the victim’s credibility and argue

. . . that sh e made false allegations out of jealousy and anger”)

. Indeed, the district court even instructed the jury that Oakie “ha [d] n ot been convicted” of the “alleged act of child molestation .” Cf. United States v. Hale , 1 F.3d 691, 694 (8th Cir. 199 3) (noting that the “ jury- 4

- instructions helped alleviate any potential prejudice”). Under these circumstances, any e videntiary error was harmless because it had little to no “influence on the verdict.” United States v. White Bull , 646 F.3d 1082, 109 3 (8th Cir. 2011) (quotation marks omitted)

.

III.

The district court also did not make a mistake by treating the prior abuse as part of “a pattern of activity involving prohibited sexual conduct

. ” U.S.S.G. § 4B1.5(b); see also id. cmt. n.4(A) (defining “prohibited sexual conduct”)

. Nor,

u nder the “ settled [law] in this circuit,” did a constitutional pro blem arise when the court considered Oakie’s “acquitted conduct [at] sentencing

. ” United States v. Papakee , 573 F.3d 569, 576 (8th Cir. 2009). The court could consider it once it found, by a preponderance of the evidence, that the prior prohib ited conduct

occ urred, regardless of whether it “ resulted in a conviction .” U.S.S.G § 4B1.5(b) cmt. n. 4(B)(ii) ; see United States v. No Neck , 472 F.3d 1048, 1055 (8th Cir. 2007)

. Finally, the district court did not rely on a “clearly erroneous fact[

. ]” United States v. Feemster , 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quotation marks omitted)

. Although the prosecutor made a mistake when he stated that Oakie would receive a time

- served credit of 895 days rather than 523 days, the district court made clear that the extent of the credit was “not a factor” in its sentencing decision. Given this statement, there was no procedural error by the court , much less a plain one. See United States v. Jordan , 877 F.3d 391, 39 3–94 (8th Cir. 201 7 ) ( explaining that an insufficiently specific objection at sentencing results in plain

- error review ). 2

2 To the extent Oakie attempts to repackage his procedural

- error arguments as a substantive

- reasonableness challenge, they fail for the same reason s

. We also conclude that his 96

- month sentence is otherwise substantively reasonable

. See United States v. Washington , 893 F.3d 1076, 1080 (8th Cir. 2018) (explaining that a within

- Guidelines

- range sentence is presumptively reasonable)

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- IV.
We accordingly affirm the judgment of the district court.

______________________________