guilty on both counts, and the district court sentenced him to 144 months’ imprisonment on Count I, a concurrent term of 120 months’ imprisonment on Count II, concurrent five-year terms of supervised release, and a $100 special assessment on each count. Robertson appeals. II. DISCUSSION Robertson first argues that abusive sexual contact (Count II) is a lesser-included offense of aggravated sexual abuse (Count I) and that his being convicted on both Counts I and II therefore violates the Fifth Amendment’s prohibition against double jeopardy. Robertson failed to raise this issue at trial. There is a conflict in our circuit over whether a defendant may raise a double jeopardy claim for the first time on appeal. See United States v. Plenty Chief, 561 F.3d 846, 851 n. 3 (8th Cir.2009) (<HOLDING>); United States v. Two Elk, 536 F.3d 890, 897
recognizing exception holding that the federal rules of civil procedure apply in diversity eases where they are on point unless they both directly conflict with state law and are invalid under the constitution or the rules enabling act holding that the federal expert witness compensation rules are in direct conflict with the state rules even when the state rules allow for a greater recovery recognizing that oath taken to honor state constitution makes it the justices duty to apply the state constitution when it does not conflict with the federal constitution recognizing the conflict