United States v. Wesley Running Shield, 831 F.3d 1079

In June 2014 defendants Wesley Running Shield and Michael Alford were charged in two related indictments alleging robberies and assaults in Indian country; Case ‘058 proceeded to trial and Case ‘059 was later dismissed on the government’s motion.
At trial (Case ‘058) the jury acquitted on robbery but convicted both defendants of assault with a dangerous weapon and assault resulting in serious bodily injury (Counts 2 and 3).
Pre‑departure Guidelines ranges were calculated at 120–150 months for Running Shield and 92–115 months for Alford.
The government moved for upward departures under U.S.S.G. §5K2.21 (uncharged/dismissed conduct) and other Guidelines; the district court granted upward departures under §§5K2.21 and 5K2.9, imposing consecutive terms of 60 months and 120 months (total 180 months) for each defendant.
Defendants appealed, arguing (1) the district court lacked authority under §5K2.21 to rely on conduct from the dismissed Case ‘059 because the dismissal was not part of a plea agreement, and (2) their Sixth Amendment right was violated because the court increased sentences based on facts not found by a jury beyond a reasonable doubt.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §5K2.21 permitted an upward departure based on conduct alleged in a dismissed indictment not dismissed pursuant to a plea agreement	Government: §5K2.21 (and related authority) allows the court to consider dismissed/uncharged conduct to reflect actual seriousness	Defendants: §5K2.21’s “dismissed as part of a plea agreement” language precludes using Case ‘059 because it was dismissed without a plea deal	Court: No abuse of discretion; court may consider dismissed conduct under §5K2.21 (and §5K2.0/§3661), and evidence supported departures
Whether using judge‑found, dismissed conduct to increase sentences violated the Sixth Amendment	Government: Advisory Guidelines permit judicial factfinding by preponderance if sentence does not exceed statutory maximums	Defendants: Consideration of uncharged/dismissed conduct not proven to a jury violates Apprendi/Blakely/Burden principles	Court: No Sixth Amendment violation—sentences were within statutory maxima, Guidelines were advisory, and judge‑found facts by preponderance are permitted; alternative §3553(a) variance also justified sentence

United States v. Shillingstad, 632 F.3d 1031 (8th Cir.) (standard: abuse of discretion review of upward departure)
United States v. Fairchild, 819 F.3d 399 (8th Cir.) (district court must correctly calculate Guidelines range before departure analysis)
United States v. Bradford, 499 F.3d 910 (8th Cir.) (departure may consider conduct not establishing offense of conviction if not considered in guideline range)
United States v. Left Hand Bull, 477 F.3d 518 (8th Cir.) (upward departure supported by dismissed charge evidence)
Pepper v. United States, 562 U.S. 476 (2011) (sentencing courts have broad discretion to consider varied information)
United States v. Watts, 519 U.S. 148 (1997) (court may consider uncharged conduct in sentencing)
United States v. Bridges, 569 F.3d 374 (8th Cir.) (advisory regime permits judge‑found facts if sentence is within statutory maximum)
United States v. Garcia‑Gonon, 433 F.3d 587 (8th Cir.) (similar principle regarding advisory Guidelines and judicial factfinding)
United States v. Ademi, 439 F.3d 964 (8th Cir.) (judicial factfinding using preponderance is permitted under advisory Guidelines)
United States v. McCraney, 612 F.3d 1057 (8th Cir.) (rejecting requirement that sentencing facts be proven beyond a reasonable doubt under advisory regime)
United States v. Grandon, 714 F.3d 1093 (8th Cir.) (same factors may inform both departure and variance; alternative variance can support sentence)