Submitted: February 12, 2016
from United States District Court for the District of South
Dakota - Rapid City
SMITH and COLLOTON, Circuit Judges, and GRITZNER, 
GRITZNER, District Judge.
convicted Wesley Running Shield and Michael Alford of assault
with a dangerous weapon and assault resulting in serious
bodily injury. The district courtsentenced both
Running Shield and Alford to 180 months imprisonment. The
defendants appeal their sentences. We affirm.
8, 2014, a grand jury issued three-count indictments against
Running Shield and Alford in two separate cases:
5:14-cr-50058 (Case '058) and 5:14-cr-50059 (Case
'059). The indictment in Case '058 charged Running
Shield and Alford with robbery, in violation of 18 U.S.C.
§§2111 and 1153 (Count 1); assault with a dangerous
weapon (a metal bar and shod feet) with the intent to do
bodily harm, in violation of 18 U.S.C. §§ 113(a)(3)
and 1153 (Count 2); and assault resulting in serious bodily
injury, in violation of 18 U.S.C. §§ 113(a)(6) and
1153 (Count 3). The indictment in Case '058 alleged the
crimes occurred in Indian country on June 12, 2014, and
identified the victim of the crimes as Johnse Donovan.
indictment in Case '059 charged Running Shield and Alford
with robbery, in violation of 18 U.S.C. §§2111 and
1153; assault with a dangerous weapon (shod feet), with the
intent to do bodily harm, in violation of 18 U.S.C.
§§ 113(a)(3) and 1153; and engaging in abusive
sexual contact, in violation of 18 U.S.C. § §
2244(a)(1), 2, and 1153. The indictment further charged that the
crimes occurred in Indian country on June 10, 2014, and
identified Misty Gamier and Arviso Alston as the victims of
the robbery, Alston as the victim of the assault with a
dangerous weapon, and Gamier as the victim of the sexual
'058 proceeded to jury trial on February 10, 2015. The
jury returned its verdicts on February 13, 2015, acquitting
Running Shield and Alford of robbery (Count 1) and convicting
them of assault with a dangerous weapon (Count 2) and assault
resulting in serious bodily injury (Count 3). On February 18,
2015, on motion of the government, the indictment against
Running Shield and Alford in Case '059 was dismissed.
to sentencing, the government filed motions for upward
departure based on U.S.S.G. §§ 5K2.21 (uncharged or
dismissed conduct), 5K2.9 (criminal purpose), and 5K2.5
(property damage or loss), and also requested an upward
variance based on the 18 U.S.C. § 3553(a) factors.
Running Shield moved for a downward departure or variance
alleging an overstated criminal history.
sentencing, the district court calculated advisory sentencing
guidelines ranges of 120 to 150 months for Running Shield and
92 to 115 months for Alford. The court then ruled on the
motions for departure denying the government's motions
for an upward departure based on § 5K2.5 and denying
Running Shield's motion for a downward departure or
variance. The court granted the government's motions for
upward departure based on §§ 5K2.21 and 5K2.9 and
sentenced both defendants to 60 months on Count 2 and 120
months on Count 3, the terms to run consecutively, for total
sentences of 180 months imprisonment. The district court
announced that in the absence of the departures, it would
have imposed the same sentences based upon consideration of
the § 3553(a) factors.
appeal, Running Shield and Alford dispute the district
court's upward departure based on § 5K2.21 and also
argue the district court violated their Sixth Amendment
rights by increasing their sentences based upon facts not
found by a jury beyond a reasonable doubt.
Application of § 5K2.21
Shield and Alford argue the "any other reason"
language in § 5K2.21 did not provide the district court
authority to depart upward from the advisory guideline range
based upon conduct alleged in the dismissed indictment in
Case '059 because the charges were not dismissed as part
of a plea agreement. "We review the court's decision
to depart upward for abuse ...