United States Court of Appeals
         For the Eighth Circuit
   ______________________________

             No. 15-2341
   ______________________________

         United States of America

                     Plaintiff - Appellee

                     v.

          Wesley Running Shield

                  Defendant - Appellant
   ______________________________

             No. 15-2369
   ______________________________

         United States of America

                     Plaintiff - Appellee

                     v.

              Michael Alford

                    Defendant - Appellant
               ___________

  Appeal from United States District Court
for the District of South Dakota - Rapid City
                 ___________
                           Submitted: February 12, 2016
                              Filed: August 8, 2016
                                  ___________

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 court2
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

      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
      2
       The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for
the District of South Dakota.

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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 Garnier and Arviso Alston
as the victims of the robbery, Alston as the victim of the assault with a dangerous
weapon, and Garnier 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

      3
       The first two counts of the indictment in Case ‘059 also named Running
Shield’s twin brother, Lesley Running Shield, as a defendant. On October 10, 2014,
the indictment and charges against Lesley Running Shield were dismissed on the
government’s motion.

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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 of discretion.” United States v.
Shillingstad, 632 F.3d 1031, 1037 (8th Cir. 2011).

      Section 5K2.21 provides:

             The court may depart upward to reflect the actual seriousness of
      the offense based on conduct (1) underlying a charge dismissed as part
      of a plea agreement in the case, or underlying a potential charge not
      pursued in the case as part of a plea agreement or for any other reason;
      and (2) that did not enter into the determination of the applicable
      guideline range.




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       At the sentencing hearing, the district court properly calculated the pre-
departure advisory guidelines ranges for Running Shield and Alford.4 See United
States v. Fairchild, 819 F.3d 399, 413 (8th Cir. 2016) (“Our first task is to ensure that
the district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range.”) (citation and internal
quotation marks omitted). In turning to the departure motions and citing circuit
precedent, the court reasoned § 5K2.21 authorized the court to consider evidence of
the defendants’ conduct that formed the basis of the dismissed indictment in Case
‘059. See United States v. Bradford, 499 F.3d 910, 918-19 (8th Cir. 2007) (“[A]
departure may be applicable even if not established by the offense of conviction if the
circumstances were not taken into consideration in determining the applicable
guideline range.”), abrogated on other grounds by United States v. Villareal-
Amarillas, 562 F.3d 892 (8th Cir. 2009); United States v. Left Hand Bull, 477 F.3d
518, 521 (8th Cir. 2006) (relying on a dismissed assault charge to support an upward
departure).

       The government introduced testimonial and photographic evidence showing
the assaults on Alston and Garnier were committed just two days before the assault
on Donovan and demonstrating the similarities between the assaults on Alston and
Donovan: the method of the assaults, the extent and types of injuries suffered by the
two victims, and the criminal purposes behind the assaults. Upon consideration of
the evidence presented and the arguments of the parties, the court concluded that the
government had carried its burden of showing by a preponderance of the evidence
that Running Shield and Alford had committed the assaults and the robbery as
charged in the indictment in Case ‘059. Considering each defendant individually, the

      4
       The district court conducted the defendants’ sentencing proceedings in three
parts. The court first conducted a joint proceeding to address issues common to both
defendants, including the motions for departure. After adjourning the joint
proceeding, the court reconvened in two separate proceedings to address and consider
sentencing issues particular to each defendant.

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court determined upward departures were warranted to reflect the seriousness of the
offenses.

       Defendants’ contention that it was improper for the district court to consider
the dismissed conduct because it was not based on a plea agreement is foreclosed by
“the ‘longstanding principle that sentencing courts have broad discretion to consider
various kinds of information.’” Pepper v. United States, 562 U.S. 476, 488 (2011)
(citing United States v. Watts, 519 U.S. 148, 151 (1997) (per curiam)). This principle
has been codified by Congress, see 18 U.S.C. § 3661 (1984) (“No limitation shall be
placed on the information concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.”), and incorporated in
the Sentencing Guidelines, see U.S.S.G. § 1B1.4 (“In determining the sentence to
impose within the guideline range, or whether a departure from the guidelines is
warranted, the court may consider, without limitation, any information concerning the
background, character and conduct of the defendant, unless otherwise prohibited by
law.”).    Whether the applicable policy statement here is § 5K2.21 or
§ 5K2.0(a)(2)(B), we find no abuse of discretion in the court’s upward departure.

      B.     Sixth Amendment Challenge
      Running Shield and Alford also argue that consideration of dismissed conduct
that was neither admitted by the defendants nor proven to a jury beyond a reasonable
doubt violated their Sixth Amendment rights. We disagree.

      “Under an advisory sentencing regime, ‘the district court is entitled to
determine sentences based upon judge-found facts and uncharged conduct’ where the
defendant is ‘not sentenced in excess of the statutory maximum.’” United States v.
Bridges, 569 F.3d 374, 377 (8th Cir. 2009) (quoting United States v. Garcia-Gonon,
433 F.3d 587, 593 (8th Cir. 2006)). Counts 2 and 3 both carry mandatory maximum
sentences of ten years’ imprisonment, see 18 U.S.C. § 113(a)(3), (a)(6). The

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sentences imposed on the two counts were consecutive terms of five years and ten
years, respectively, and therefore did not exceed the statutory maximums. When the
district court applies the guidelines in an advisory manner, which it did here, “judicial
fact-finding using a preponderance of the evidence standard is permitted.” United
States v. Ademi, 439 F.3d 964, 966 (8th Cir. 2006). Because the district court treated
the guidelines as advisory and sentenced the defendants below the statutory
maximum, the Sixth Amendment was not implicated. See United States v.
McCraney, 612 F.3d 1057, 1067 n.6 (8th Cir. 2010) (rejecting the contention that
“facts found by the court at sentencing must be proved beyond a reasonable doubt,
even under the advisory guideline regime” as foreclosed by circuit precedent (citing
Garcia-Gonon, 433 F.3d at 593)). Running Shield and Alford do not contend that the
judge-found facts were necessary to prevent the sentences from being substantively
unreasonable. Cf. United States v. Briggs, 820 F.3d 917, 921-22 (8th Cir. 2016),
petition for cert. filed, (U.S. June 3, 2016) (15-9685).

       The district court announced it would have imposed the same sentences based
upon an upward variance using the § 3553(a) factors alone, which provides an
alternative proper basis for the sentences imposed. United States v. Grandon, 714
F.3d 1093, 1098 (8th Cir. 2013) (“It is irrelevant that some of the same factors
influenced both the departure and the variance, which were alternative grounds for
the same sentence.”).

III.   CONCLUSION
       For these reasons, the judgment of the district court is affirmed.
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