                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2463
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Eastern District of Missouri.
                                        *
Kevin Russell Jakoubek,                 *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 16, 2005
                                Filed: June 20, 2005
                                 ___________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

       Kevin Russell Jakoubek was convicted on one count of using a facility in
interstate commerce with the intent that a murder be committed as consideration for
a promise to pay anything of pecuniary value. See 18 U.S.C. § 1958(a) (2000).
Jakoubek claims the District Court1 violated his right to confrontation by prohibiting
his counsel from cross-examining the government's key witness and the government's
investigator regarding an arrest warrant on pending state charges against the witness.
Jakoubek also claims the District Court erred by sentencing him pursuant to

      1
       The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
sentencing guidelines that he argues are unconstitutional in light of the Supreme
Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).2 We affirm the
District Court in all respects.

       Jakoubek first claims the District Court erred by not allowing his counsel to
inquire into an arrest warrant for charges pending in state court against the
government's key witness, Jack Woolbright, in an attempt to show that Woolbright
altered his testimony in exchange for assistance from the government on the charges
and warrant. Where a defendant claims a violation of the Confrontation Clause
resulting from a district court's limitation on cross-examination, we will not reverse
the ruling absent a clear abuse of discretion and a showing of prejudice. United
States v. Ortega, 150 F.3d 937, 941 (8th Cir. 1998), cert. denied, 525 U.S. 1087
(1999). A witness's motivation for testifying should be revealed to the jury so the
jury can assess its impact on the witness's credibility. Id.; Davis v. Alaska, 415 U.S.
308, 316 (1974). But a district court has wide latitude to impose reasonable limits on
the cross-examination of a witness regarding his motivation to testify. Ortega, 150
F.3d at 941. Moreover, the fact that a witness may receive a reduced sentence in
exchange for his testimony does not categorically make the testimony infirm. United
States v. Baker, 367 F.3d 790, 798 (8th Cir. 2004). And where the jury has been
informed of a witness's cooperation with the government, the witness's extensive
criminal history, and the potential for the witness to receive a reduced sentence, the
jury is free to give whatever weight they choose to his testimony. United States v.
Martinez, 958 F.2d 217, 218 (8th Cir. 1992).

     Here, the District Court allowed Jakoubek's counsel to question thoroughly
both Woolbright and the FBI case agent, Special Agent Jeff Brown, regarding
Woolbright's expectation of reward for cooperating with the government. Brown


      2
        Jakoubek's appellate brief was filed prior to the Supreme Court's issuance of
its decision in United States v. Booker, 125 S. Ct. 738 (2005).

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testified that he paid Woolbright $500.00 for assisting in the investigation and that
he would probably pay Woolbright for testifying, but that the payment would not be
contingent upon a conviction of Jakoubek. Both Woolbright and Brown repeatedly
stated that Woolbright was not promised anything in return for his testimony, and
Woolbright stated he did not expect to be paid or receive anything in return. Further,
the federal prosecutor in charge of the case informed the District Court that the
government had no ability to make promises or representations regarding any state
cases against Woolbright. Thus, there was no indication that Woolbright would or
could receive assistance from the government regarding his warrant on pending state
charges, let alone that he altered his testimony or sought to "entrap" Jakoubek in
exchange for such assistance. Br. of Appellant at 13.

       In addition, the jury heard ample evidence of Woolbright's criminal history.
Woolbright testified that he had thirteen prior felony convictions, including those for
burglary, tampering, and auto theft; that he had gone to prison for a total of about ten
years; and that he had committed crimes while working as a government informant.
Woolbright further testified that Jakoubek had paid him on prior occasions to steal
equipment and to burn a car and a house. Woolbright even passed on an opportunity
to deny that he had ever "killed anyone," stating instead that he had never "bragged
about it." Trial Tr. vol. II at 76. Notwithstanding this and other unsavory evidence
regarding Woolbright, the jury apparently credited his testimony by convicting
Jakoubek. There is no indication that a more probing inquiry into Woolbright's
pending charges and warrant would have cast additional doubt on his credibility.
Thus, the District Court did not abuse its discretion by limiting the cross-examination
of Woolbright regarding his warrant on pending state charges, nor was it an abuse of
discretion to prevent the cross-examination of Brown about the same.

      We next address Jakoubek's constitutional challenge to his sentence under
Blakely. Jakoubek was sentenced to a term of 120 months in prison pursuant to
§ 5G1.1 of the guidelines. See U.S. Sentencing Guidelines Manual § 5G1.1 (2004).

                                          -3-
That section provides that where the minimum of the applicable guidelines range
exceeds the statutory maximum for the convicted offense, the statutory maximum
shall be the defendant's sentence. Id. § 5G1.1(a). Given that Jakoubek would have
been sentenced to the statutory maximum for his offense based only on facts found
by the jury, even without any enhancement based on judicial fact-finding,3 no Sixth
Amendment violation occurred. See Booker, 125 S. Ct. at 749. But because at the
time of sentencing the District Court was bound by § 5G1.1 to sentence Jakoubek to
the statutory maximum, a Booker error took place, and we must decide whether to
remand the case for resentencing. Id. at 769.

       Jakoubek did not raise in the District Court any objection to his sentence
regarding the Sixth Amendment or the constitutionality of the guidelines, nor did he
reference Apprendi or Blakely. See Apprendi v. New Jersey, 530 U.S. 466 (2000);
Blakely, 124 S. Ct. 2531. We therefore review his claim for plain error. United
States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc). In this Circuit, where
a defendant was sentenced under the mandatory, pre-Booker guidelines, we will find
plain error only where there is a reasonable probability, based on the appellate record
as a whole, that the defendant would have received a more favorable sentence under
an advisory guidelines system. Id. at 552. We must resist the temptation to play
Monday morning quarterback with Jakoubek's sentence from the relative comfort of
a post-Booker armchair. To obtain plain-error relief, Jakoubek bears the difficult
burden of showing that the effect of the error is not "uncertain or indeterminate" or
cause for the appellate court to "speculate." Id. at 553 (quoting United States v.
Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005)). We find no plain error here.

      There is nothing in the record to indicate beyond speculation that Jakoubek's
sentence would have been more favorable under an advisory guidelines system. The


      3
      Jakoubek's guidelines range would have exceeded the statutory maximum
even without a two-level enhancement he received for obstruction of justice.

                                         -4-
District Court made no negative reference to the mandatory nature of the pre-Booker
guidelines at sentencing. And under an advisory guidelines system, the District Court
would have been required to consider Jakoubek's applicable guidelines range, see
Booker, 125 S. Ct. at 764 (quoting 18 U.S.C. § 3553(a)(4)), which exceeded the
statutory maximum, and also to consider the advice proffered by § 5G1.1(a) of the
guidelines. The fact that Jakoubek's intended victim was not harmed is irrelevant
given that the statutory maximum would have increased had personal injury or death
resulted from his offense. See 18 U.S.C. § 1958(a) (2000). Jakoubek therefore has
failed to meet his burden to show plain error resulting from his sentencing under the
pre-Booker guidelines system.

      The judgment of the District Court is affirmed.
                     ______________________________




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