Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Shield

United States Court of Appeals, Eighth Circuit

August 8, 2016

United States of America, Plaintiff - Appellee
v.
Wesley Running Shield, Defendant-Appellant United States of America, Plaintiff - Appellee
v.
Michael Alford, Defendant-Appellant

          Submitted: February 12, 2016

         Appeal from United States District Court for the District of South Dakota - Rapid City

          Before SMITH and COLLOTON, Circuit Judges, and GRITZNER, [1] District Judge.

          GRITZNER, District Judge.

         A jury convicted Wesley Running Shield and Michael Alford of assault with a dangerous weapon and assault resulting in serious bodily injury. The district court[2]sentenced both Running Shield and Alford to 180 months imprisonment. The defendants appeal their sentences. We affirm.

         I. BACKGROUND

         On July 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.

         The 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.[3] 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 assault.

         Case '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.

         Prior 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.

         At 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.

         On 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.

         II. DISCUSSION

         A. Application of § 5K2.21

         Running 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.