                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 04-3871
      ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Mark High Elk,                          *
                                        *
            Appellant.                  *
                                        *
      ___________                       *
                                        *
      No. 04-3937                       * Appeals from the United States
      ___________                       * District Court for the
                                        * District of South Dakota
United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Richard LaPlante,                       *
                                        *
            Appellant.                  *
                                        *
                                 ________________

                            Submitted: November 14, 2005
                                Filed: April 3, 2006
                                ________________
Before MURPHY, GRUENDER and McMILLIAN,1 Circuit Judges.
                       ________________

GRUENDER, Circuit Judge.

      The Appellants, co-defendants Mark High Elk and Richard LaPlante, each were
convicted by a jury of two felony counts of assault resulting in serious bodily injury and
aiding and abetting the assault in violation of 18 U.S.C. §§ 1153, 113(a)(6) and 2, and
two misdemeanor counts of simple assault and aiding and abetting the simple assault
in violation of 18 U.S.C. §§ 1153, 113(a)(5) and 2. The Appellants appeal their
respective convictions and sentences. For the reasons discussed below, we affirm.

I.    BACKGROUND

       By a four-count indictment, each Appellant was charged with two felony counts
of assault with a dangerous weapon (Counts I and III) and two felony counts of assault
resulting in serious bodily injury and aiding and abetting the assault pursuant to 18
U.S.C. §§ 1153, 113(a)(3), and 2 (Counts II and IV) in connection with the October 15,
2003, assaults of Francis Addison and Royce Dauphinais at the home High Elk shared
with Toni Handboy on the Cheyenne River Sioux Indian Tribe reservation.

        At trial, the Appellants requested that the jury be allowed to consider convicting
on lesser included offenses. Granting this request, the district court instructed the jury
that if it did not find an Appellant guilty on Count I or Count III, it then must determine
whether that Appellant was guilty of the lesser included misdemeanor offense of simple
assault. Likewise, if it did not find an Appellant guilty on Count II or Count IV, it then
must determine whether that Appellant was guilty of the lesser included misdemeanor
offense of assault by striking, beating or wounding. The jury found the Appellants

      1
        The Honorable Theodore McMillian died on January 18, 2006. This opinion is
filed by the remaining members of the panel pursuant to 8th Circuit Rule 47E.
                                            -2-
guilty of assault resulting in serious bodily injury (Counts II and IV) but not of assault
with a dangerous weapon (Counts I and III). However, the jury did find the Appellants
guilty of the lesser included misdemeanor offense of simple assault on Counts I and III.

       Sentencing the Appellants in the period between Blakely v. Washington, 542 U.S.
296 (2004), and United States v. Booker, 543 U.S. 220 (2005), the district court2 held
that the United States Sentencing Guidelines were unconstitutional. However, the
district court identified advisory sentencing guidelines ranges of 70 to 87 months for
LaPlante and 57 to 71 months for High Elk – guidelines ranges that included an
enhancement under U.S.S.G. § 2A2.2(b)(2)(B) for both Appellants based on the use of
a dangerous weapon. The district court then imposed a sentence of 66 months for
LaPlante and a sentence of 60 months for High Elk for the assault resulting in serious
bodily injury convictions and concurrent sentences of 6 months for each Appellant for
each simple assault conviction.

II.   DISCUSSION

       The Appellants argue that the constitutional prohibition against double jeopardy
precludes their convictions for both the assaults resulting in serious bodily injury of
Dauphinais (Count I) and Addison (Count III) and the lesser included simple assaults
of Dauphinais (Counts II) and Addison (Count IV). This argument was not raised
before the district court. “It is well settled that ‘[d]ouble jeopardy claims may not be
raised for the first time on appeal.’” United States v. Santana, 150 F.3d 860, 863-64
(8th Cir. 1998)(quoting United States v. Goodwin, 72 F.3d 88, 91 (8th Cir. 1995)).
Therefore, the double jeopardy claim is not properly before the Court, and we do not
address its merits. Goodwin, 72 F.3d at 91.




      2
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
                                           -3-
        The Appellants next claim that the district court erred by allowing the
Government to present the rebuttal testimony of Samuel High Elk, Appellant High Elk’s
brother, and FBI Special Agent David Mackey. The admissibility of rebuttal evidence
is a matter entrusted to the sound discretion of the trial judge. United States v. Luschen,
614 F.2d 1164, 1170 (8th Cir. 1980). The Appellants argue that admission of Samuel
High Elk’s and Mackey’s testimony was improper because it was beyond the limited
scope allowed for rebuttal. However, the Appellants fail to point to any excerpts from
the transcript in support of their position or offer any substantive legal arguments.


         A review of the trial transcript shows that Samuel High Elk, who was with the
Appellants immediately prior to the Appellants’ return to the High Elk/Handboy
residence, testified that he believed there was going to be a physical confrontation,
contradicting High Elk’s trial testimony that the Appellants were not looking for trouble
when they went back to the house. Likewise, Mackey testified that High Elk admitted
to him that he knew there would be a fight when the Appellants returned to the
residence. This prior statement clearly rebuts High Elk’s trial testimony. Mackey also
testified that the version of the attack High Elk described to him sharply contrasted with
the version LaPlante offered in his trial testimony. For example, Mackey testified that
High Elk told him that LaPlante grabbed a bat from the utility room and began swinging
wildly at the victims. LaPlante, however, testified at trial that he got the bat when he
wrestled it away from Dauphinais, who had struck him on the back. Because the rebuttal
testimony was well within the scope of the evidence presented in the Appellants’ cases-
in-chief, we find that this was proper rebuttal and that the district court did not abuse
its discretion by admitting Samuel High Elk’s and Mackey’s testimony. See United
States v. Vitale, 728 F.2d 1090, 1093 (8th Cir. 1984) (“Once a witness (especially a
defendant-witness) testifies as to any specific fact on direct testimony, the trial judge
has broad discretion to admit . . . evidence tending to contradict the specific statement
. . . .” (quoting United States v. Giese, 597 F.2d 1170, 1190 (9th Cir. 1979)).




                                            -4-
        The Appellants also complain that Mackey’s testimony violated Bruton v. United
States, 391 U.S. 123 (1968). We review de novo the issue of whether a Bruton
violation occurred, United States v. Vega Molina, 407 F.3d 511, 519 (1st Cir. 2005)
(citing United States v. Sarracino, 340 F.3d 1148, 1158-59 (10th Cir. 2003)). Bruton
is grounded on the Sixth Amendment right to confrontation and prohibits the admission
of an out-of-court confession by a nontestifying defendant implicating a co-defendant
by name in the crime. United States v. Karam, 37 F.3d 1280, 1287 (8th Cir. 1994)
(citing Bruton, 391 U.S. at 126). However, Bruton does not apply when the declarant
testifies at trial and is available for cross-examination. Karam, 37 F.3d at 1287.


       In this case, both Appellants testified at trial. After their testimony, Special Agent
Mackey testified on rebuttal and recounted statements made by High Elk that implicated
both High Elk and LaPlante in the assaults. The Appellants argue that this testimony
violates Bruton because they had no opportunity to confront High Elk on these
statements.3 LaPlante claims that he did not attempt to recall High Elk because the Fifth
Amendment would have protected High Elk from being compelled to testify. However,
in addition to being incorrect regarding the availability of the Fifth Amendment,
Johnson v. United States, 318 U.S. 189, 195 (1943) (citations omitted), this argument
ignores the fact that LaPlante could have confronted High Elk about his statements to
Mackey when High Elk testified during the Appellants’ cases-in-chief. Despite being
well aware of High Elk’s statement to Mackey, LaPlante chose not to confront High Elk
about it when he had the opportunity to do so. Therefore, because High Elk took the
witness stand and was available for cross-examination by LaPlante, there was no Bruton
violation by the admission of his out-of-court statements implicating LaPlante. See
United States v. Brady, 579 F.2d 1121, 1129 (9th Cir. 1978) (finding no Bruton

       3
       Although High Elk makes the same Bruton argument as LaPlante, High Elk has
no standing to argue a violation under Bruton. High Elk cannot claim that the testimony
deprived him of his confrontation right because he was the declarant of the statements
and Mackey did not testify about any statement that LaPlante made implicating High
Elk.
                                             -5-
violation where “each appellant who made an extra-judicial statement was present in
court, actually took the witness stand, and subjected himself to cross-examination, both
by the government and by the other appellant”).


       Finally, the Appellants argue that the district court erred by including the
enhancements for use of a dangerous weapon in calculating the Appellants’ advisory
sentencing guidelines ranges. The Appellants claim that, under Blakely and Booker, any
fact used to enhance a sentence must be found beyond a reasonable doubt by a jury.
The argument is without merit. Post-Booker case law permits judicial fact-finding for
purposes of sentencing guidelines enhancements, provided that it is done with the
understanding that the guidelines are applied in an advisory fashion. United States v.
Ameri, 412 F.3d 893, 899 (8th Cir. 2005). Because the record establishes that the
guidelines were applied in an advisory manner, such fact-finding was permissible.


        In addition, the Appellants argue that the district court could not increase their
advisory sentencing guidelines ranges on the basis of acquitted conduct. This argument
also fails. Even post-Booker, for purposes of calculating the advisory guidelines range,
the district court may find by a preponderance of the evidence facts regarding conduct
for which the defendant was acquitted. United States v. Radtke, 415 F.3d 826, 844 (8th
Cir. 2005) (holding that, in determining whether the district court had correctly
calculated fraud loss, the “jury’s acquittal . . . establishes only that there was reasonable
doubt as to [the defendant’s] involvement with such conduct” and the “district court was
still free, indeed obliged, to consider whether his involvement had been proved by a
preponderance of the evidence”). As the record indicates that there was ample evidence
to support a finding that the Appellants used a bat as a dangerous weapon, we find no
error in the district court’s inclusion of a guideline enhancement for the use of a
dangerous weapon.




                                             -6-
III.   CONCLUSION


      Accordingly, as to each Appellant, we affirm the conviction and the district
court’s sentence.
                      ______________________________




                                       -7-
