UNITED STATES of America, Appellee, v. Jeffrey D. SAYRE, Appellant, 400 F.3d 599

BEAM, Circuit Judge. Jeffrey Sayre appeals the sentence imposed by the district court following his plea of guilty to a charge of interference with commerce by means of extortion under color of official right. We affirm. 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 ob-structipn-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, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (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. 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.

Some question whether, in cases not involving a Sixth Amendment violation, 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. 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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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 ánd you will not be planning any more murders. I am satisfied that the seriousness' of the offense requires that at least á 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. III. CONCLUSION For the reasons stated herein, we affirm. . The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri. . 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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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, 113 S.Ct. 1770. . Here, we have no Sixth Amendment violation because Sayre admitted all facts reviewed by the district court in imposing the sentence.