The HONORABLE JOHN C. GODBOLD, United States Senior Circuit * Judge for the Eleventh Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

_____________ No. 98-1227

_____________ UNITED STATES OF AMERICA, * * Plaintiff-Appellee * * Appeal from the United States v. * District Court for the District * Of South Dakota WENDELL PAUL WHITE MAGPIE * [UNPUBLISHED] * Defendant-Appellant *

____________ Submitted: June 8, 1998 Filed: July 28, 1998

____________ Before LOKEN, Circuit Judge, GODBOLD, and HEANEY, Senior Circuit * Judges.

____________ PER CURIAM: The defend ant was convicted by a jury of three counts of aggravated sexua l abuse of a child an d one count of abusive sexual contact with a child, in violation of 18 U.S.C. § 2241(c) and 2244(a)(1). The victims were the defendant’s six year old2

daughter (Count III), five year old son (Count I & II), and four year old daughte r (Count IV). The defen dant appeals the judgment. He contends that the evidence wa s insuff icient to support his conviction, that his Confrontation Clause rights wer e violated and that his sentence is so excessive as to violate the Eighth Amendment. The court di d not err in denying defendant’s motion for judgment of acquittal based on al leged insufficiency of the evidence to convince the jury beyond a reasonable doubt that the defendant was guilty. Medical testimony tended to show injury to the genital area of one child and the rectal area of another child. The sixyear-old testified that she had been touched by her father in a manner that hurt her. She marked diagrams of a female and male body with X’s to show where she ha d been touched and by what part of her father’s body. Moreo ver, in a handwritten confession the defendant graphically admitte d

sexu ally abusing the children. There was no objection to the admission of th e confession into evidence. Also testimony descri bed blankets lying on the floor of the basement, the site of one o f the abusive incidents, and having on them human blood. Defendant’s confession referred to the basement as the scene of the occurrences and to the blankets. This evidence is not made less than sufficient by evidence that on a single occasion, some six months before the tr ial during a medical examination of the3

child ren, their mother made a single remark that might tend to indicate that she was prompting one of the children in what to say. The defendant suggests that the Confrontation Clause may have been violated by permit ting hearsay statements made by one or more of the children. The alleged statements are not specifically identified. In any event two of the children took the stand and sub mitted to cross-examination, which made the Confrontation Clause no obst acle. See California v. Green , 399 U.S. 149, 153 (1970); U.S. v. Spotted War Bonnet , 933 F.2d 1471, 1473 (8 Cir. 1991)( “The confrontation clause presents an th obstacle to admitting hearsay statements only when the child does not testify in the state's case either because of unavailability or by choice of the prosecution.”). The government placed the name of the mother on its witness list. During trial govern ment counsel concluded that her testimony would be unreliable an d cumulative, therefo re he decided not to call her as witness. The defendant contends that the Confrontation Clause was violated because notice was too short for him to subpoena her. The court considered this issue when rais ed by defendant’s motion for

new trial. It denied the motion on the ground that defense counsel was bound t o anticipate the possibility that a listed witness might not be called and should hav e timely re quested a subpoena as to all witnesses considered to be important. Th e district court also noted that defense counsel made no request for a continuance in4

order to secure the mother’s presence. The court did not err or abuse its discretion Defend ant was sentenced to 236 months on Counts I, II, and III, concurren t with 120 months on Count IV, fol lowed by five years of supervised release. He will be approximately 75 years old when released. The sentence is within statutory limits of 18 U.S.C. § 2241, which allows any term of years up to life imprisonment. The sentence i s severe, but we cannot say that it violates the Eighth Amendmen t proscri ption against cruel and unusual punishment. Bearing in mind the repeate d offenses, and the fact that the victims were defendant’s own children of tender years, we cannot say that the sentence was grossly disproportionate. See Neal v. Grammar , 975 F.2d 463, 465 (8 Cir. 1992) (“[T]he Eighth Circuit narrowly reviews a sentence th to determine whether the sen tence ‘is grossly 'disproportioned' to the crime.’”). Nor does the fact that the sentence may exceed defendant’s life expectancy violate th e Eighth Amendment. See U.S. v. Mendoza , 876 F.2d 639, 64 0 (8 Cir. 1989)(holding th that as long as a sen tence is within the range provided by statute it is not reviewable by an appellate court even where it exceeds a defendant’s life expectancy). The conviction and the sentence must be, and are, AFFIRMED. A TRUE COPY. ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.